Mohareb v Manly Local Court (No 2)

[2024] NSWCA 234

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Manly Local Court (No 2) [2024] NSWCA 234

Hearing dates:

23 September 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Before:

Gleeson JA

Decision:

The recusal application is refused.

Catchwords:

BIAS — Apprehended bias — Application for recusal of judge — Whether previous adverse decisions can ground apprehended bias — Whether comments by judge at commencement of hearing gave rise to reasonable apprehension of bias — recusal application refused

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.17

Cases Cited:

CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Mohareb v State of New South Wales [2023] NSWCA 289

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69

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

1. GLEESON JA: At the commencement of the hearing of a motion in the referrals list today, Mr Nader Mohareb requested that I recuse myself from hearing the motion on the grounds of apprehended bias. By that motion, Mr Mohareb sought to challenge the determination of the President that the application for leave to appeal be determined as a leave only hearing and also sought to vacate the hearing fixed for 26 September 2024 pending determination of the motion.

2. At the conclusion of oral argument, I refused that application and indicated that I would provide my reasons later today. My reasons follow.

3. In support of the recusal application, Mr Mohareb first referred to my involvement in other proceedings in which he was a party, specifically an unsuccessful application for leave to appeal from a decision of Campbell J (Mohareb v State of New South Wales [2023] NSWCA 289), and an unsuccessful application under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15, 36.16 and/or 36.17 to set aside the order made by the Court on 4 December 2023 dismissing his application for leave to appeal (Mohareb v State of New South Wales (No 2) [2024] NSWCA 69).

4. The fact I was a member of the Court (with Stern JA) which dismissed Mr Mohareb’s application for leave to appeal on 4 December 2023 and which also dismissed his application to set aside the decision of 4 December 2023 is not a reason why I should recuse myself. The fair-minded lay observer who is “neither complacent nor unduly sensitive or suspicious” (CNYv Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [19], citing Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [53]), would recognise that my previous involvement in Mr Mohareb’s applications in other proceedings is not a sufficient reason for recusing myself.

5. Whether I was right or wrong in refusing Mr Mohareb’s application for leave to appeal on 4 December 2023 or his subsequent application to set aside that order says nothing as to whether a fair-minded lay observer might reasonably consider that I might not bring an impartial and unprejudiced mind to the resolution of the motion in the present proceedings: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The fact that his earlier applications failed could not reasonably be thought to indicate that I had prejudged the motion in the present proceedings.

6. Next, Mr Mohareb submitted that a fair-minded lay observer might reasonably consider that I might have predetermined the motion because I indicated at the commencement of the hearing of the motion that it was “appropriate that the Court deal with your motion today and the Court is in a position to deal with your motion” given that the motion sought to challenge the President’s determination that there be a leave only hearing which was fixed for 26 September 2024.

7. Mr Mohareb emphasised that he was self-represented and that he had assumed that a timetable would be set for the filing and service of submissions in relation to his motion, with the consequence that the hearing this Thursday would necessarily be vacated. He said that it was unjust and unfair for the Court to proceed to hear his motion today rather than fix a timetable for filing of submissions on the motion.

8. That Mr Mohareb made an assumption that his motion would be dealt with in a manner differently to the way in which the Court indicated was appropriate given the proximity of the hearing in respect of which relief was sought in the motion, does not mean that the fair-minded lay observer might reasonably consider that as the decisionmaker on the motion I might decide the question on the motion other than on the merits of that question. Nor did Mr Mohareb articulate any logical connection between his suggestion that I had predetermined the motion and the apprehended or feared deviation from the course of dealing with the motion other than on its merits: Ebner at [6]; Michael Wilson at [31].

9. For the above reasons, I refused the recusal application.

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Decision last updated: 23 September 2024