Mohareb v Kelso (No 2)

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.