Mohareb v Palmer

[2020] NSWCA 323

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mohareb v Palmer [2020] NSWCA 323

Hearing dates:

5 March 2020

Date of orders:

5 March 2020

Decision date:

11 December 2020

Before:

Basten JA

Decision:

Dismiss the applicant’s recusal application.

Catchwords:

PRACTICE AND PROCEDURE – recusal application – reasonable apprehension of bias – appeal from vexatious proceedings order – presiding judge having sat on prior appeal and leave application characterised as vexatious – reliance on transcript – other member of the earlier court dismissive of applicant’s case

Legislation Cited:

Crimes Act 1900 (NSW), s 338

Vexatious Proceedings Act 2008 (NSW), ss 6, 8

Cases Cited:

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

Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17

Mohareb v Palmer [2017] NSWCA 281

Category:

Principal judgment

Parties:

Nader Mohareb (Applicant)
Matthew Palmer (First Respondent)
Attorney General of NSW (Second Respondent)

Representation:

Counsel:
In person (Applicant)
J Emmett/R McEwen (Second Respondent)

Solicitors:
In person (Applicant)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2019/267950

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 975

Date of Decision:

7 August 2019

Before:

Fagan J

File Number(s):

2018/217228

Judgment

1. BASTEN JA: The applicant, Nader Mohareb, sought leave to appeal from a judgment of Fagan J in the Common Law Division making orders under the Vexatious Proceedings Act 2008 (NSW), prohibiting the applicant from initiating fresh proceedings, without leave of the court.

2. At the commencement of the hearing, the applicant sought my recusal. I declined the application, indicating that I would give reasons for that decision when judgment was delivered on the substance of the application. [1]

   1. CA tcpt, 5 March 2020, p 7(15).

3. The application under the Vexatious Proceedings Act was brought on the motion of the respondent, Matthew Palmer, who had been the subject of a number of proceedings brought against him by the applicant. The basis of the application was that the applicant had “frequently instituted or conducted vexatious proceedings” as provided in s 8(1)(a) of the Act. “Vexatious proceedings” include proceedings “instituted or pursued without reasonable ground”, as noted in the definition in s 6(c) of the Vexatious Proceedings Act.

4. In support of that application, a number of proceedings were identified as having been commenced without reasonable grounds. They were characterised numerically by the trial judge as the first-tenth proceedings. The application was based on two applications for leave to appeal which had come before this Court, when I was sitting. One, heard on 2 November 2017, was identified as the “sixth proceeding” in the judgment of the trial judge. [2] That matter involved an application for leave to appeal from the refusal of Mr Mohareb’s application for leave to bring a prosecution for perjury, pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW). The application for leave to appeal was brought from a decision of Gibson DCJ in the District…