Mohareb v Kelso (No 3)

[2018] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Kelso (No 3) [2018] NSWCA 250
Hearing dates:	29 October 2018
Date of orders:	29 October 2018
Decision date:	29 October 2018
Before:	Beazley P; Macfarlan JA
Decision:	Summons for leave to appeal and motion for stay dismissed with costs.
Catchwords:	APPEAL – leave to appeal against interlocutory decision refusing to adjourn proceedings – no issue of principle
Cases Cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 In Re the Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 Mohareb v Kelso [2017] NSWCA 98 Mohareb v Kelso [2018] NSWCA 164 Mohareb v Kelso (No 2) [2018] NSWCA 246
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) John Alexander Kelso (Second Respondent) Saratoga Marine Ltd (Third Respondent) Laurence Geoffrey Leeson (Fourth Respondent) Leetec Pty Limited (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent) Taylor Booth (Seventh Respondent)
Representation:	Counsel: Applicant self-represented First Respondent self-represented Sixth Respondent self-represented   Solicitors: Applicant self-represented First Respondent self-represented Sixth Respondent self-represented
File Number(s):	CA 2018/322640
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 27 September 2018 Before: Curtis ADCJ File Number(s): DC 2015/201139; 2015/359339; 2016/292950; 2017/227427; 2017/227359

Judgment

1. THE COURT: This is a summons seeking leave to appeal against an interlocutory decision of Curtis ADCJ of 27 September 2018 refusing to adjourn the hearing of certain proceedings that his Honour fixed on that day for hearing on 29 October 2018, being today.

2. Mr Mohareb, who is the applicant, did not file his Court of Appeal summons seeking leave to appeal until 22 October 2018 and did not file his motion for a stay of the District Court actions until last Friday afternoon, that is, 26 October 2018.

3. On the filing of that notice of motion, this Court accommodated Mr Mohareb by fixing his leave and, if relevant stay, application for hearing at 9.15am today. Due however to the imminence of the scheduled District Court hearing (to commence at 10am today) and the lateness of Mr Mohareb’s application, for which he has provided no satisfactory explanation, this Court has had to hear and determine the applications before it on an urgent basis.

4. The nature of and background to the District Court actions are described in the decisions of this Court in Mohareb v Kelso of 12 May 2017 ([2017] NSWCA 98) and 13 July 2018 ([2018] NSWCA 164). By the latter decision, this Court refused to grant Mr Mohareb leave to appeal against a decision of a District Court Judicial Registrar not to consolidate various District Court actions commenced by Mr Mohareb.

5. Subsequently, on 19 September 2018, Letherbarrow DCJ referred the various District Court actions to Curtis ADCJ for “consolidated management”. Mr Mohareb submitted to Curtis ADCJ on 27 September 2018 that Letherbarrow DCJ had gone further and had decided that the actions should actually be heard together, as distinct from being managed together. Curtis ADCJ said that there was no basis for concluding that his Honour had done that and that in any event he (Curtis ADCJ) had the power to vary any such determination. The transcript of the hearing before Letherbarrow DCJ does not indicate that his Honour intended to pre-empt any case management decisions that Curtis ADCJ might make.

6. After 19 September 2018, Mr Mohareb filed a motion in the Court of Appeal seeking variation of its 13 July 2018 decision on the basis that Letherbarrow DCJ’s alleged determination that the actions be heard together constituted a relevant subsequent event justifying the Court of Appeal reconsidering the decision. That motion was dismissed last Friday ([2018] NSWCA 246]).

7. To support his present Court of Appeal applications, Mr Mohareb advanced some nine arguments specified in six paragraphs of his summons and draft notice of appeal. Before referring to them, we repeat the reference in the Court of Appeal decision of 30 July 2018 at [32] (per Basten JA and Sackville AJA) to the principle established long ago in In Re the Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 that an appellate court ought be reluctant to intervene, by way of review or appeal, in procedural rulings of a trial court. To this, I add that a party seeking such intervention will in addition have to overcome the high barrier for appellate intervention identified in House v The King (1936) 55 CLR 499; [1936] HCA 40.

8. We now turn to the nine grounds upon which Mr Mohareb relies.

9. First, Mr Mohareb submitted to Curtis ADCJ that he should adjourn the District Court actions to enable him to obtain surgery or other treatment for injuries that he alleges that the first respondent inflicted on him on 4 December 2017. Mr Mohareb did not however put before Curtis ADCJ evidence of any conflict between Mr Mohareb’s need for treatment and the early hearing of the actions. The highest Mr Mohareb’s evidence went before Curtis ADCJ was that Mr Mohareb was consulting a surgeon the following day.

10. Secondly, Mr Mohareb submitted to Curtis ADCJ that he needed time to vacate his rental premises to comply with a notice of termination. Curtis ADCJ took this submission into account but there was no compelling evidence before his Honour that should have satisfied his Honour that the course he took was inappropriate.

11. Thirdly, Mr Mohareb submitted that an early hearing date in the District Court would pre-empt the determination of his Court of Appeal motion referred to above. Again, this was a submission which Curtis ADCJ took into account. His Honour was entitled nevertheless to proceed to fix the District Court actions for hearing as there was, and is, no reason to think that that motion may succeed.

12. Fourthly, Mr Mohareb submitted to Curtis ADCJ that he wished to have the opportunity to seek transfer of the District Court actions to the Supreme Court. Again, Curtis ADCJ took this into account. There was nothing unreasonable in his Honour not being persuaded by this submission as Mr Mohareb told his Honour that the reason he wanted that transfer was: “I feel that it is unlikely that I will receive fair treatment in this Court and I feel that I have a better chance of getting an objective and fair treatment in the Supreme Court” (Transcript p 8).

13. Fifthly, Mr Mohareb complains that Curtis ADCJ refused “to abide or be bound by the Judicial Registrar & the List Judge, Letherbarrow DCJ’s case management decision for a consolidated hearing of the District Court proceedings…” It is by no means clear that Letherbarrow DCJ made that decision but in any event it was open to Curtis ADCJ, as his Honour recognised, to take a different course if he thought that appropriate. Indeed, the purpose of Letherbarrow DCJ’s referral of the actions to Curtis ADCJ was no doubt to facilitate Curtis ADCJ making the relevant case management decisions.

14. Sixthly, Mr Mohareb contends that Curtis ADCJ erred in “precipitously” fixing the District Court actions for hearing in four weeks’ time for the “sole reason that the first respondent has waited long enough and that justice entitles him to a prompt and speedy trial”. Mr Mohareb has not been able to obtain a copy of Curtis ADCJ’s judgment of 27 September, however, it is apparent from the transcript of the protracted argument that occurred on that day that, whilst this matter was a factor which his Honour took into account, there were many other matters that were also considered by his Honour.

15. Seventhly, Mr Mohareb complained that it would not have been possible for him to prepare his case within four weeks of 27 September. Mr Mohareb put this to Curtis ADCJ but his Honour nevertheless proceeded to fix the hearing date. This was a matter for the evaluative judgment of an experienced trial judge, as his Honour is. No error in his Honour’s approach has been shown.

16. Eighthly, Mr Mohareb alleges that Curtis ADCJ’s decision will cause overwhelming prejudice to his case. The question of prejudice however was for Curtis ADCJ to assess. No error in his Honour’s approach has been demonstrated.

17. Ninthly, Mr Mohareb alleges that Curtis ADCJ was affected by “Actual Bias & hostility” against him. A reading of the transcript of 27 September 2018 does not support that submission, nor has Mr Mohareb adduced any other evidence to sustain it.

18. Before concluding, we refer as follows to Mr Mohareb’s affidavit of 25 September 2018, filed in the District Court.

19. In it Mr Mohareb first refers to his need for surgery for his injuries. “Annexure A” to that affidavit does not provide evidence that surgery is urgent and about to occur.

20. Secondly, as to the vacation of his premises, Mr Mohareb annexes a notice of termination of his tenancy. That notice does not however of itself supply evidence that would render Mr Mohareb’s need to vacate his premises a compelling circumstance in support of his arguments.

21. Thirdly, Mr Mohareb says that he wants the District Court actions dealt with in the Supreme Court. Again, he provides no compelling evidence why the District Court actions should be adjourned to enable him to allow that application to proceed.

22. As the arguments Mr Mohareb has advanced in support of his application are without merit, his summons for leave to appeal should be dismissed with costs. It follows that his motion for a stay of the District Court proceedings should also be dismissed with costs.

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Decision last updated: 29 October 2018