Mohareb v Palmer
[2020] NSWCA 323
•11 December 2020
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:
Solicitors:
In person (Applicant)
J Emmett/R McEwen (Second Respondent)
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
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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.
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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).
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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.
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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 Court given on 13 February 2017 refusing leave to prosecute Mr Palmer for perjury.
2. Mohareb v Palmer [2017] NSWCA 281 (“sixth proceeding”).
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The issues raised in the fifth and sixth proceedings are identified in the judgments dismissing the appeal in this matter. It is sufficient to note for present purposes that in the judgment refusing leave to appeal, I dealt separately with two separate perjury allegations. With respect to the first allegation my conclusion was in the following terms:
“[10] It is apparent that the focus of the alleged perjury was the statement of the respondent as to the instructions he gave his solicitor. Whether he was to be believed was a matter which no doubt turned significantly on the objective circumstances and on his own credibility. It cannot be said that the assessment made by the primary judge on this central element was not open to her. Nor is there any reasonable prospect that this Court would reconsider a factual finding. Further, and contrary to the applicant’s submissions in this Court, there is no issue of general principle which arises from the circumstances of the case. No doubt it is true that there is a public interest in ensuring that witnesses who lie on oath do not ‘get away with it’. However, there is no public interest in every circumstance in which a party believes (or a judge finds) that a witness has been untruthful that that person be prosecuted for perjury.”
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With respect to the second allegation, Gibson DCJ had disbelieved a statement made by Mr Palmer under cross-examination, but nevertheless refused leave to prosecute Mr Palmer for perjury. In dealing with the application for leave to appeal, I wrote:
“[16] In effect acknowledging that the finding by the primary judge was not itself sufficient to form a sound basis for a prosecution for perjury, the applicant in his written submissions sought to explain why on the basis of other evidence, the respondent must have lied. However, the logic of the submission is by no means self-evident. There is no issue of general public importance and there is no clear case that the primary judge erred in refusing leave to prosecute for perjury. The application with respect to the second alleged false statement must be refused.”
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Finally, the sixth matter contained a challenge to the refusal of Gibson DCJ to refer to the Supreme Court for proceedings by way of contempt of court alleged conduct of Mr Palmer. In the course of dismissing the application for leave to appeal from that finding, I noted that, at one point, the judge had expressed herself in terms which did not reflect the language of the legal test to be applied. [3] However, the judge returned to the correct test in reaching a conclusion. It followed that the primary judge had not misapplied the law and there was “no reasonable likelihood that this Court would interfere with the order.” Accordingly, leave to appeal was refused. [4]
3. Sixth proceeding, [22].
4. Sixth proceeding, [23].
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In his submissions on the recusal application, Mr Mohareb noted that one ground of his proposed appeal in the sixth proceeding had been bias on the part of Gibson DCJ. In that respect he submitted: [5]
“Your Honour didn't give me the chance to make submissions in relation to my bias allegation and dismissed them without hearing me, just because I'm saying it.”
5. CA tcpt, p 2(45).
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The applicant relied upon the transcript of the hearing in this Court to maintain that proposition. He submitted that the other member of the Court, Sackville AJA, had been “angry and outraged” at the allegation of bias on the part of the District Court judge. [6]
6. CA tcpt, p 3(50).
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The transcript of the hearing of 2 November 2017 was in the materials relevant to the sixth proceeding. Reading the transcript demonstrates that (i) the Court was familiar with the judgment from which an appeal was sought to be brought and with the applicant’s written submissions on the leave application; (ii) the applicant was given the usual opportunity on a leave application, of which he availed himself, to address the Court and (iii) both orally and in writing, he addressed the ground of apprehension of bias. It was dealt with in the judgment in the following terms:
“[24] Three further matters should be noted. First the draft notice of appeal contained an allegation of bias and hostility on the part of the primary judge against the applicant. A perusal of the transcript, as well as the judgment, reveals no basis for these allegations, but rather consideration and patience in the face of unduly repetitive and tendentious submissions and responses to questions. Resistance to, or even outright rejection of, submissions is not to be confused with bias or hostility against a party.”
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The applicant referred to a separate leave application involving a different respondent, on which I had sat. Apart from the fact that the Court had refused leave to appeal, there was no specific basis relied upon to demonstrate how that matter was relevant to the present proceeding, which was not based on that particular earlier judgment.
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The principles governing a recusal application are not in doubt. A judge should not sit if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [7] Such an apprehension may arise where the judge has had to consider matters involving the credit of a witness in a previous proceeding and has made adverse findings. [8] That is not this case.
7. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11].
8. Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17.
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It is true that, in the sixth proceeding, my reasons for judgment concluded with the following paragraphs:
“[25] Secondly, the primary judge thought it desirable to set out some of the litigious background to these motions. She adopted a statement from the reasons of Bryson J in Bar-Mordecai v Hillston [9] referring to the undesirability of what may be termed ‘satellite litigation’, other than in very clear cases. These observations were entirely appropriate. The same consideration applies with perhaps greater force in relation to applications to this Court for leave to appeal from unsuccessful motions for the exercise of a discretionary interlocutory judgment in the court below.
[26] Thirdly, this is, as Mr Gelonesi submitted for the respondent, the third time that proceedings have been brought before this Court in relation to what is, in substance, the same set of issues. There have been some differences of form, but it would be an affront to the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW) to entertain this proposed appeal.”
9. [2003] NSWSC 1269 at [20].
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These were non-dispositive statements based upon what appeared to be the objective circumstances known to the Court. The hypothetical bystander had no reason to think I might not review those findings if the evidence demonstrated that they were erroneous.
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For these reasons, I declined the recusal application.
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Endnotes
Amendments
11 December 2020 - Recusal reasons uploaded in place of No 2 judgment
Decision last updated: 11 December 2020
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