Mohareb v Kelso (No 3)

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).