Mohareb v Kelso

Mohareb v Kelso concerned an application for leave to appeal to the Court of Appeal of New South Wales following a decision by Ierace J. The applicant, Mr Mohareb, sought to challenge the dismissal of his notice of motion by a Registrar and the subsequent dismissal of his amended summons by operation of the *Vexatious Proceedings Act*. Mr Mohareb also sought the recusal of the primary judge on grounds of apprehended bias.

The legal issues before the Court of Appeal included whether the primary judge erred in refusing to set aside the Registrar's dismissal of Mr Mohareb's notice of motion, and whether the primary judge erred in finding that Mr Mohareb's amended summons was automatically dismissed under the *Vexatious Proceedings Act*. The court also considered whether there was a reasonable apprehension of bias justifying the recusal of the primary judge.

The Court of Appeal, comprising Macfarlan and McCallum JJA, granted leave to appeal on a limited basis concerning the dismissal of the notice of motion and the operation of the *Vexatious Proceedings Act*. The court found that Mr Mohareb had demonstrated an arguable basis for challenging the orders made under the Act, particularly as a relevant vexatious proceedings order had since been set aside on appeal. However, the court found no merit in the apprehended bias claim, concluding that a fair-minded lay observer would not reasonably apprehend that the judge might not bring an impartial mind to the issues.

Consequently, the Court of Appeal granted leave to appeal in respect of the specific orders concerning the notice of motion and the *Vexatious Proceedings Act*, but otherwise dismissed Mr Mohareb's summons seeking leave to appeal. Costs were ordered to follow the event, with costs of the summons being costs in the appeal and Mr Mohareb ordered to pay the costs of other respondents.