Mohareb v Kelso (No 2)

Case [2018] NSWCA 246

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mohareb v Kelso (No 2) [2018] NSWCA 246
Hearing dates: On the papers
Decision date: 26 October 2018
Before: Basten JA, Sackville AJA
Decision:

Dismiss the applicant’s notice of motion filed 13 August 2018.

Catchwords: CIVIL PROCEDURE – application for leave to appeal – reopening application – actual bias alleged – reliance on conduct of leave hearing and reasons for judgment – reliance on dismissal of prior applications in other matters
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 36.15
Cases Cited: Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd (2008) 71 NSWLR 262; [2008] NSWCA 38
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGERA 162
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; [1969] HCA 10
Category:Procedural and other rulings
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (First Respondent)
John Alexander Kelso (Second Respondent)
Saratoga Marine Pty Ltd (Third Respondent)
Laurence Leeson (Fourth Respondent)
Leetec Pty Ltd (Fifth Respondent)
Roderick Gerrard Smith (Sixth Respondent)
Taylor Booth (Seventh Respondent)
Representation: Applicant self-represented
File Number(s): 2017/301930
 Decision under appeal 
Court or tribunal:
Court of Appeal
Citation:
[2018] NSWCA 164
Date of Decision:
30 July 2018
Before:
Basten JA, Sackville AJA
File Number(s):
2017/301930

Decision under review

Judgment

  1. THE COURT: On 30 July 2018 the Court, as presently constituted, refused an application by the applicant, Nader Mohareb, for leave to appeal from two sets of orders made by the Judicial Registrar in the District Court. [1] On 13 August 2018 the applicant filed a notice of motion seeking to have the orders (other than order (1) which granted him an extension of time) set aside. He further sought a grant of leave to appeal from the orders of the District Court and final orders reversing the orders made by the Registrar of the District Court on 19 February 2018. (The last orders sought would only be made on an appeal and may be disregarded.)

    1. Mohareb v Kelso [2018] NSWCA 164 (“30 July judgment”).

  2. The grounds identified in the notice of motion alleged actual bias on the part of the members of the Court. That ground would fall within the terms of an irregularity, illegality or order made against good faith, within Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1), as noted in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council, [2] referring to Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd,[3] following and applying Cameron v Cole [4] and Taylor v Taylor. [5]

    2. [2009] NSWCA 300; 170 LGERA 162 at [41].

    3. (2008) 71 NSWLR 262; [2008] NSWCA 38 at [85] (Spigelman CJ, Tobias and Campbell JJA agreeing).

    4. (1944) 68 CLR 571 at 591; [1944] HCA 5.

    5. (1979)…

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AGLC
Mohareb v Kelso (No 2) [2018] NSWCA 246
Case
[2018] NSWCA 246
Decision Date

CaseChat Overview and Summary

Mohareb (the applicant) sought leave to appeal against orders made by a judge of the Supreme Court of New South Wales. The applicant alleged actual bias on the part of the judge, relying on the judge's conduct during a hearing for leave to appeal and the reasons provided for judgment. The applicant also referred to the dismissal of prior applications made in other matters. The application was heard by Basten JA and Sackville AJA of the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the applicant had established a sufficient basis to grant leave to appeal on the grounds of actual bias. This required the court to consider whether the conduct and reasons of the primary judge demonstrated a prejudgment of the case or a disposition that would prevent the applicant from receiving a fair hearing. The court also had to assess whether the applicant's reliance on the dismissal of previous applications was relevant to the current claim of bias.

The Court of Appeal dismissed the applicant's application. Their Honours found that the applicant had failed to demonstrate any actual bias on the part of the judge. The conduct and reasons relied upon by the applicant did not establish that the judge had prejudged the issues or was incapable of giving impartial consideration to the evidence and submissions. The court concluded that the applicant had not met the threshold for granting leave to appeal on the grounds alleged.

The applicant's notice of motion filed on 13 August 2018 was dismissed.

Orders

Orders of the court

Dismiss the applicant’s notice of motion filed 13 August 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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