Mohareb v Kelso (No 3)

[2021] NSWCA 213

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Mohareb v Kelso (No 3) [2021] NSWCA 213

Hearing dates:

6 September 2021

Date of orders:

14 September 2021

Decision date:

14 September 2021

Before:

Macfarlan JA at [1];
Leeming JA at [3];
McCallum JA at [7].

Decision:

(1)   Dismiss Mr Mohareb’s notice of motion filed 31 August 2021.

(2)   Order Mr Mohareb to pay John Kelso’s costs of that motion.

(3)   Appeal allowed in part.

(4)   Set aside the notation made by order (3) on 16 October 2020.

(5)   Note instead that the amended summons filed by Mr Mohareb on 13 August 2020 is not taken to have been dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).

Catchwords:

CIVIL PROCEDURE – where notice of motion dismissed on the basis that it was to be replaced by an amended summons – amended summons filed after the applicant became subject to a vexatious litigant order – whether primary judge in error in determining that the amended summons was taken to be dismissed by the operation of the Vexatious Proceedings Act – whether amended summons was filed as the continuation of the application commenced before the applicant became subject to a vexatious litigant order

COURTS AND JUDGES – bias – grounds alleging actual bias and apprehended bias – repeated applications for recusal on substantially the same grounds – no basis for recusal

Legislation Cited:

Bankruptcy Act 1966 (Cth) s 60(4)

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

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

Mohareb v Kelso [2020] NSWCA 105

Mohareb v Kelso [2020] NSWSC 1402

Mohareb v Kelso [2021] NSWCA 103

Mohareb v Palmer (No 2) [2020] NSWCA 324

Palmer v Mohareb [2019] NSWSC 975

R v Kelso [2020] NSWDC 157

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

Publication restriction:

Nil

 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: Mr Mohareb has made an application for me to recuse myself from the hearing of the matters the subject of this judgment, on the bases of apprehended and actual bias. I rejected a similar application in this Court’s decision of 20 August 2021 ([2021] NSWCA 182). Mr Mohareb has not raised any arguable point to indicate that the test for apprehended bias referred to in [4] of that judgment has been satisfied or that I am actually biased. Accordingly, I reject the application. I note that subsequent to the hearing in this Court, Mr Mohareb sent an email withdrawing his application that I recuse myself. I have disregarded this as it was sent without leave.

2. I agree with the…