Mohareb v Kelso (No 3)

Case [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…

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Details
AGLC
Mohareb v Kelso (No 3) [2021] NSWCA 213
Case
[2021] NSWCA 213
Decision Date

CaseChat Overview and Summary

Mohareb v Kelso (No 3) concerned an appeal to the New South Wales Court of Appeal from a decision of a primary judge. The applicant, Mr Mohareb, sought to appeal against the dismissal of his notice of motion and the subsequent filing of an amended summons. The central dispute revolved around whether the amended summons, filed after Mr Mohareb was made subject to a vexatious litigant order, was validly filed or automatically dismissed by operation of the *Vexatious Proceedings Act 2008* (NSW). Mr Mohareb also raised grounds alleging actual and apprehended bias on the part of the primary judge.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in concluding that the amended summons was automatically dismissed by the operation of the *Vexatious Proceedings Act 2008* (NSW) due to its filing after the applicant was declared a vexatious litigant. Secondly, the Court considered whether the grounds of bias alleged by Mr Mohareb against the primary judge were made out, particularly in light of repeated applications for recusal on substantially similar grounds.

The Court of Appeal reasoned that the amended summons filed on 13 August 2020 was not a new proceeding but rather a continuation of the application commenced prior to Mr Mohareb being made subject to the vexatious litigant order. Consequently, the *Vexatious Proceedings Act 2008* (NSW) did not operate to automatically dismiss the amended summons. Regarding the bias allegations, the Court found no basis for recusal, noting that the applications for recusal were repeatedly made on substantially the same grounds without establishing actual or apprehended bias.

The Court allowed the appeal in part. It dismissed Mr Mohareb’s notice of motion filed on 31 August 2021 and ordered him to pay Mr Kelso’s costs of that motion. However, it set aside the notation made on 16 October 2020 and noted instead that the amended summons filed on 13 August 2020 was not taken to have been dismissed by the operation of the *Vexatious Proceedings Act 2008* (NSW).

Orders

Orders of the court

(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).

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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