Mohareb v Kelso (No 2)

[2021] NSWCA 182

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Kelso (No 2) [2021] NSWCA 182

Hearing dates:

On the papers

Date of orders:

20 August 2021

Decision date:

20 August 2021

Before:

Macfarlan JA at [1];
McCallum JA at [10]

Decision:

(1)    Reject the applications for the recusal of Macfarlan JA and McCallum JA.

(2)    Amend Order (1) made on 24 May 2021 by adding the words “in relation to Mr Mohareb’s claim against Mr Alexander Kelso” after the word “issues”.

(3)    Dismiss Mr Mohareb’s Amended Notice of Motion filed on 1 June 2021, with costs.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – motion under UCPR r 36.16 to set aside previous judgment of Court – judgment granted leave to appeal limited to specific issues – whether grant of leave should be extended to allow applicant to appeal against entire decision including costs order made by Registrar and reviewed by primary judge – no good reason to permit appellate challenge to costs order – costs order appears to have been appropriate in the circumstances

COURTS AND JUDGES – bias – application for recusal – allegations of apprehended bias and actual bias against judges – applications rejected

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72

Lee v Cha [2008] NSWCA 13

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320

Category:

Procedural rulings

Parties:

Mr Nader Mohareb (Applicant)
Mr Alexander Edward Kelso (First Respondent)
Mr John Alexander Kelso (Second Respondent)
Mr Roderick Gerrard Smith (Third Respondent)

Representation:

Counsel:
Self-represented (Applicant)
J Prowse (sol) (Second Respondent)
Self-represented (Third Respondent)

Solicitors:
MCW Lawyers (Second Respondent)

File Number(s):

2020/313168

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1402

Date of Decision:

16 October 2020

Before:

Ierace J

File Number(s):

2020/174984

Judgment

1. MACFARLAN JA: By judgment of 24 May 2021 ([2021] NSWCA 103), the Court as presently constituted made the following orders:

“(1) Grant leave to Mr Mohareb to appeal in respect of the orders made by Ierace J on 16 October 2020, limited to the issues of whether Mr Mohareb’s notice of motion of 1 February 2018 should have been dismissed by the Registrar and whether Mr Mohareb’s Amended Summons filed on 13 August 2020 was taken to be dismissed by operation of the Vexatious Proceedings Act.

(2) Otherwise dismiss Mr Mohareb’s summons seeking leave to appeal.

(3) Order that Mr Mohareb’s and Mr Alexander Kelso’s costs of the summons seeking leave to appeal be costs in the appeal.

(4) Order that Mr Mohareb pay the costs of the other respondents to his summons seeking leave to appeal.”

2. By Amended Notice of Motion filed on 1 June 2021 Mr Mohareb seeks to have those orders varied so as to grant him leave to appeal against the whole of the judgment of Ierace J ([2020] NSWSC 1402). The parties have filed written submissions in relation to the motion. This judgment assumes the reader’s familiarity with the terms of our earlier judgment.

3. As the motion was filed within 14 days of the judgment, this Court has power to entertain it under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.16(3A). It is however only in limited circumstances that the Court will act under that rule to vary an earlier judgment (see Zepinic v Health Care Complaints Commission (No 2) [2020] NSWCA 320 at [3]-[4], referring to Lawrence v Ciantar (No 2) [2020] NSWCA 186 at [7], Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303; [1993] HCA 6 and Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 at [7]).

4. I should first address Mr Mohareb’s contention that I should recuse myself from dealing with his motion. That contention should be rejected because neither matter relied upon by Mr Mohareb suggests that “a fair-minded lay observer might reasonably apprehend that [I] might not bring an impartial mind to the resolution of the question [I am] required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). The first matter Mr Mohareb relies on is that he asserts that in an email to him of 25 May 2021 the Court of Appeal Registrar, writing on behalf of the Court, incorrectly rejected a proposition put by Mr Mohareb in an email to my Associate. The second is that in an email in reply to the Registrar, Mr Mohareb was strongly critical of that response and of me, who formulated the response. I do not consider that either matter might suggest that in response to a properly constituted application such as that made by the present motion I might not bring an impartial and unprejudiced mind to dealing with it. The fact that what I accept was an error was made in correspondence says nothing about my impartiality, nor does the fact that a litigant has criticised me, and in my opinion the reasonable observer would not consider differently. If Mr Mohareb is alleging that I am actually biased against him (which is not clear), in part because he is a self-represented litigant, I also reject that contention. I am in no way biased against him.

5. In a separate judgment below, McCallum JA similarly rejects an application by Mr Mohareb that she disqualify herself from hearing the present motion.

6. Secondly, the Second Respondent to the motion has correctly pointed out that there was a slip in the terms of the grant of leave that the Court made on 24 May 2021 in that they do not make clear the intent apparent from our reasons for judgment of that day that the grant of leave be limited to challenging Ierace J’s order insofar as it related to Mr Mohareb’s claim against Mr Alexander Kelso. Pursuant to the slip rule (UCPR r 36.17), our Order (1) of 24 May 2021 should accordingly be amended by adding the words “in relation to Mr Mohareb’s claim against Mr Alexander Kelso” after the word “issues”.

7. I turn then to the substantive relief sought by Mr Mohareb in his Amended Notice of Motion filed in this Court on 1 June 2021, that is, to extend the grant of leave to appeal to the whole of Ierace J’s judgment. The effect of such an extension would be to permit Mr Mohareb to challenge on appeal to this Court his Honour’s rejection of Mr Mohareb’s challenge to Order (3) of Registrar Jones made on 13 August 2020. I accept, as Mr Mohareb contends, that that order is inaccurately described in [7] of our earlier judgment. That order was in fact in the following terms:

“(3) The Plaintiff is to pay the second respondent’s costs of responding to the notice of motion filed on 01/02/18 in the Court of Appeal proceedings 2017/301390, as incurred in relation to the remittance of that notice of motion to the Common Law Division of the Supreme Court.”

8. The fact of the misdescription does not however assist Mr Mohareb. The order remains a costs order in relation to which no good reason to permit an appellate challenge has been shown, particularly is this so where there has already been one review (by Ierace J) of the Registrar’s order. Mr Mohareb withdrew his claims against the respondents other than Mr Alexander Kelso. It was appropriate in those circumstances that costs orders be made in favour of those respondents. I accept that the order could be more clearly expressed but when regard is had to the Registrar’s reasons as recorded in the transcript of the directions hearing of 13 August 2020 and the fact that Simpson AJA had earlier made an order against Mr Mohareb concerning costs incurred by reason of his motion having been incorrectly filed in the Court of Appeal, any possible ambiguity is removed and it is apparent that, as Mr Mohareb asserts in [2] of his written submissions dated 15 June 2021, “the basis for Registrar Jones’ costs order was her dismissal of [the] 1st February 2018 notice of motion” (see generally Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [60]-[62], [245] and Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 at [165]-[167]). I accept that the email from the Court referred to in [4] above recorded a different view but that does not provide a basis for granting leave to appeal against Ierace J’s dismissal of the application to review Registrar Jones’ costs order which appears to have been appropriate in the circumstances.

9. Mr Mohareb’s Amended Notice of Motion filed on 1 June 2021 should accordingly be dismissed, with costs. This should occur now without, as Mr Mohareb seeks, adjourning the motion to the hearing of his appeal which is listed for hearing on 6 September 2021.

10. McCALLUM JA: As Macfarlan JA has noted, Mr Mohareb’s Amended Notice of Motion includes an application for an order that I recuse myself from determining the motion. I reject that application, for the following reasons.

11. By contrast with the application to Macfarlan JA (and Mr Mohareb’s previous application to me), Mr Mohareb now perceives that I am actually biased against him. I am not. It is a matter of public record that I have encountered Mr Mohareb in a number of different proceedings. Our exchanges in court have always been respectful and courteous. He has enjoyed mixed success in the outcomes. I have determined each matter according to my assessment of its merits. Mr Mohareb is an intelligent and experienced litigant but he is not legally trained. That he is sometimes unsuccessful is not a basis on which he should infer that judicial officers are biased against him. The obligation to determine any matter before the Court impartially and without bias is reflected in the terms of the judicial oath (in my case, an affirmation) which includes a solemn promise to do right to all manner of people without fear or favour, affection or ill-will. I do not hold any fear, favour, affection or ill-will towards Mr Mohareb.

12. Mr Mohareb finds support for his contention of actual bias in the fact that, twice “in a row”, I have agreed with findings he contends are incorrect. The argument is convoluted and makes a number of incorrect assumptions. It is based on the fact that I agreed with Macfarlan JA in the first judgment in the present matter and also with Simpson AJA in Mohareb v Palmer (No 2) [2020] NSWCA 324 (to which I will refer as the Palmer appeal). Mr Mohareb does not contend that Macfarlan JA’s and my first decision in the present matter of itself reveals actual bias. He characterises the incorrect finding attributed to Macfarlan JA as “a benign unintentional misunderstanding” on his Honour’s part which “in view of the facts and circumstances of the matter is quite understandable”. He nonetheless infers actual bias on my part revealed by my having reached the same benign unintentional misunderstanding.

13. Mr Mohareb perceives actual bias on my part by the following reasoning:

1. in the first judgment in the present case, I rejected an application by Mr Mohareb to recuse myself on the grounds of apprehended bias based on my agreement with Simpson AJA in the Palmer appeal;

2. Mr Mohareb reads my reasons for rejecting that application as indicating that I saw nothing wrong with having agreed with Simpson AJA, whom Mr Mohareb accuses of having made deliberately false findings with the “premeditated intention to cover-up for her sabotaging” his proceedings against Mr Kelso;

3. Mr Mohareb also reads my reasons for rejecting the application as amounting to an admission that, in reaching agreement with Simpson AJA in the Palmer appeal, I did not read the evidence or the submissions but only read her Honour’s judgment;

4. (perhaps introducing a new allegation of apprehended bias) Mr Mohareb contends that this would lead a fair-minded observer to conclude that, in reaching agreement with Macfarlan JA in the present matter, I also had done no more than read his Honour’s judgment and had not formed an independent assessment of the evidence.

14. Mr Mohareb’s reasoning is based on a misconception as to the principles applied in the previous application. The test for a judicial officer to be disqualified for apprehended bias is “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

15. The first step in the application of that test is to identify “what it is said might lead the judge (or juror) to decide a case other than on its legal and factual merits”; then it is necessary to articulate “the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”: Ebner at [8].

16. In Mr Mohareb’s previous application that I recuse myself for apprehended bias in the present case, the matter which it was said might lead me to decide the case other than on its legal and factual merits was my agreement with the judgment of Simpson AJA in the Palmer appeal. In his written outline of submissions dated 20 May 2021 in support of that earlier application, Mr Mohareb accused both the primary judge in the present case and Simpson AJA of participating in a wider campaign to sabotage his proceedings against Mr Kelso and to rid the Court of Mr Mohareb. I will refer to those as the conspiracy allegations. Mr Mohareb submitted that, as I agreed with her Honour in the Palmer appeal, I was precluded from hearing the present matter “by association with Simpson AJA”.

17. I rejected that submission on the basis that the fair-minded reader of the whole of the judgment in the Palmer appeal would not be led to accept the conspiracy allegations and therefore would not apprehend bias on my part by association with Simpson AJA.

18. Mr Mohareb contends that the fair-minded observer would also have regard to all of Mr Mohareb’s evidence and submissions concerning the findings of Simpson AJA. The submission reflects a misconception of the relevant legal test. The hypothetical fair-minded observer is just that, an observer. She is taken to have such knowledge of what can be observed by a member of the public as is necessary to place the relevant impugned comments or conduct in context: Lee v Cha [2008] NSWCA 13 at [45] (Basten JA with whom Hodgson and Bell JJA agreed at [1] and [97]). She is not taken to stand in the shoes of one of the parties to the litigation.

19. Mr Mohareb’s submissions in support of the present application otherwise repeat and expand upon matters addressed in his previous submissions concerning the conduct of a different judge in the Defamation List at a time when I no longer conducted that list. Those allegations are plainly irrelevant to the appropriateness of my determining the present application. The submissions include additional allegations concerning my earlier conduct of that list which are either wrong or irrelevant to the present application.

20. As to the balance of the motion, I agree with Macfarlan JA for the reasons his Honour has stated.

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Decision last updated: 20 August 2021