Mohareb v Manly Local Court - [2024] NSWCA 233

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
Rajski v Wood (1989) 18 NSWLR 512

Category: Procedural rulings
Parties: Nader Mohareb (Applicant)
Manly Local Court (First respondent)
Constable Aden Murphy (Second respondent)
Representation:
Counsel:
S T Munnoch (Solicitor) (First respondent)
A G Deards (Solicitor) (Second respondent)
Solicitors:
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:

[2024] NSWSC 345

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 233
Decision Date: 23 September 2024

CaseChat Overview and Summary

Mohareb sought leave to appeal from a decision of the Manly Local Court. The applicant challenged an administrative direction made by a single judge of the Court of Appeal regarding the listing of the application for leave to appeal, which had been directed to be heard separately from the substantive appeal. The applicant, unrepresented, also sought to vacate the hearing of the application for leave to appeal to allow more time for preparation, noting that the second respondent had filed a late response that contained no surprises.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Rajski v Wood (1989) 18 NSWLR 512
Category:	Procedural rulings
Parties:	Nader Mohareb (Applicant) Manly Local Court (First respondent) Constable Aden Murphy (Second respondent)
Representation:	Counsel: S T Munnoch (Solicitor) (First respondent) A G Deards (Solicitor) (Second respondent) Solicitors: 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: [2024] NSWSC 345 Date of Decision: 5 April 2024 Before: Button J File Number(s): 2022/242042