Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mohareb v Manly Local Court [2024] NSWCA 233 Hearing dates: 23 September 2024 Date of orders: 23 September 2024 Decision date: 23 September 2024 Before: Gleeson JA Decision: (1) The applicant’s amended notice of motion filed 20 September 2024 is dismissed.
(2) The applicant to pay the second respondent’s costs of the amended motion.
Catchwords: APPEALS — Procedure — Summons seeking leave to appeal — Where President of Court of Appeal directed that application for leave be heard alone not concurrently with argument on the appeal — Where applicant for leave challenged administrative decision of single judge of appeal — Whether listing decision is a judgment or order or direction amenable to challenge or review
APPEALS – Procedure – Application to vacate leave only hearing to provide more time to prepare – Unrepresented litigant – Where other party filed response to summons late – Where nothing in other party’s response capable of taking applicant by surprise
Legislation Cited: Local Court Act 2007 (NSW), s 7
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17, 42.1, 51.14
Cases Cited: Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General’s Department) (2010) 79 NSWLR 354; [2010] NSWCA 72
Category: Procedural rulings Parties: Nader Mohareb (Applicant)
Manly Local Court (First respondent)
Constable Aden Murphy (Second respondent)Representation: Counsel:
Solicitors:
S T Munnoch (Solicitor) (First respondent)
A G Deards (Solicitor) (Second respondent)
Nader Mohareb (Applicant / Self-represented)
Crown Solicitor’s Office (First respondent)
Makinson d’Apice (Second respondent)
File Number(s): 2024/163221 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 5 April 2024
- Before:
- Button J
- File Number(s):
- 2022/242042
Judgment
-
GLEESON JA: Before the Court in the referrals list is an application by Mr Nader Mohareb, relating to his application for leave to appeal from a judgment of Button J on 5 April 2024 dismissing Mr Mohareb’s application for judicial review of an interlocutory decision of Magistrate Denes in the Local Court of New South Wales at Manly on 13 July 2022 refusing to issue two subpoenas sought by Mr Mohareb in criminal proceedings brought against him: Mohareb v Manly Local Court [2024] NSWSC 345.
Background
-
The background to the application is as follows. In his summary of argument dated 27 May 2024, Mr Mohareb sought a concurrent hearing of his application for leave to appeal and argument on the appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.12(4)(g).
-
On 5 August 2024 there was a directions hearing before the Registrar. The Registrar informed the parties that the President had determined that the application for leave be listed for a “leave alone” hearing and made a direction listing the matter for hearing (leave only) on 26 September 2024.
-
By amended notice of motion filed 20 September 2024 Mr Mohareb…
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- Case
- [2024] NSWCA 233
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the administrative direction of the President of the Court of Appeal, to hear the application for leave to appeal separately from the substantive appeal, constituted a judgment, order, or direction that was amenable to challenge or review by the applicant. A secondary issue concerned the applicant's request to vacate the hearing of the application for leave to appeal.
Gleeson JA determined that the direction of the President of the Court of Appeal was an administrative act concerning the listing of proceedings and was not a judgment, order, or direction that could be challenged or reviewed by the Court. The Court found no basis to interfere with the administrative decision regarding the hearing of the application for leave to appeal. Furthermore, the Court found no prejudice to the applicant from the late filing of the second respondent's response, and therefore no grounds to vacate the hearing.
Consequently, the applicant's amended notice of motion was dismissed, and the applicant was ordered to pay the second respondent's costs of the motion.
Orders
Orders of the court
(1) The applicant’s amended notice of motion filed 20 September 2024 is dismissed.
(2) The applicant to pay the second respondent’s costs of the amended motion.
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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