Mohareb v Kelso (No 4)

[2021] NSWCA 336

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Kelso (No 4) [2021] NSWCA 336

Hearing dates:

On the papers

Decision date:

17 December 2021

Before:

Macfarlan JA, McCallum JA

Decision:

Notice of motion dated 14 September 2021 dismissed

Catchwords:

CIVIL PROCEDURE – application to expand scope of leave to appeal after final hearing and determination of appeal – repeated applications

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

Cases Cited:

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

Mohareb v Kelso [2020] NSWSC 1402

Mohareb v Kelso [2021] NSWCA 103

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

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)
I King (Second Respondent)

Solicitors:
MCW Lawyers (Second Respondent)

File Number(s):

2020/313168

 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. The Court: Nader Mohareb sought leave to appeal against a decision of Ierace J: Mohareb v Kelso [2020] NSWSC 1402. Leave to appeal was granted limited to a particular issue: Mohareb v Kelso [2021] NSWCA 103. The Court on that occasion was constituted by Macfarlan JA and me. The appeal has since been heard and determined: Mohareb v Kelso (No 3) [2021] NSWCA 213. The Court on that occasion was constituted by Macfarlan JA, Leeming JA and me. The judgment was published on 14 September 2021. The appeal was allowed in part.

2. In the meantime, Mr Mohareb has made applications challenging the limited scope of the leave granted and for Macfarlan JA and me to recuse ourselves. The first such application was determined on the papers by Macfarlan JA and me. The application was dismissed with costs on 20 August 2021: Mohareb v Kelso (No 2) [2021] NSWCA 182.

3. A further notice of motion dated 31 August 2021 was filed by Mr Mohareb again seeking to reopen the scope of the leave granted and for Macfarlan JA and me to recuse ourselves. That motion was stood over to be heard together with the appeal (which was listed for hearing on 6 September 2021) and was addressed in the substantive judgment determining the appeal. The notice of motion was dismissed with costs: Mohareb v Kelso (No 3) [2021] NSWCA 213 at [27].

4. Mr Mohareb’s repeated applications for Macfarlan JA and me to recuse ourselves have been refused: Mohareb v Kelso [2021] NSWCA 103 at [21]-[27]; Mohareb v Kelso (No 2) [2021] NSWCA 182 at [4] and [10]-[19]; Mohareb v Kelso (No 3) [2021] NSWCA 213 at [1] and [21].

5. On 14 September 2021, the day on which the Court’s final judgment determining the appeal was published, Mr Mohareb filed yet a further notice of motion again seeking to reopen the scope of the leave to appeal granted by the Court and again seeking for Macfarlan JA and me to recuse ourselves. No basis has been established for any of the relief sought in that motion. Mr Mohareb contends that his recusal applications were left undetermined in the appeal judgment. That is incorrect: see Mohareb v Kelso (No 3) [2021] NSWCA 213 at [1] and [20]-[21]. Additional orders are sought of a kind which it would not be appropriate for the Court to make. I propose that the notice of motion dated 14 September 2021 be dismissed.

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