Mohareb v Palmer

[2017] NSWCA 281

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Palmer [2017] NSWCA 281
Hearing dates:	2 November 2017
Decision date:	02 November 2017
Before:	Basten JA at [1]; Sackville AJA at [28]
Decision:	(1)   Refuse the application for leave to appeal from orders made in the District Court on 30 May 2017.  (2)   Order that the applicant pay the respondent’s costs in this Court
Catchwords:	APPEALS – leave to appeal – interlocutory judgment of District Court – refusal of leave to prosecute respondent for perjury – refusal to refer alleged contempt of court to Supreme Court – allegation of bias and hostility – whether findings of fact open to primary judge – whether primary judge impermissibly determined if contempt had been committed – whether issue of general public importance – third application in relation to substantially similar issues
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6 Crimes Act 1900 (NSW), s 338 District Court Act 1973 (NSW), s 203
Cases Cited:	Bar-Mordecai v Hillston [2003] NSWSC 1269 Mohareb v Palmer (No 3) [2016] NSWDC 38 Mohareb v Palmer (No 4) [2017] NSWDC 127 Moss v McIlveen [2011] NSWCA 77
Category:	Principal judgment
Parties:	Nader Mohareb (Applicant) Matthew Palmer (Respondent)
Representation:	Applicant self-represented   Solicitor: Mr B Gelonesi, GP Legal (Respondent)
File Number(s):	2017/246744
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: [2017] NSWDC 127 Date of Decision: 30 May 2017 Before: Gibson DCJ File Number(s): 2014/243522

Judgment

1. BASTEN JA: The applicant, Nader Mohareb, sought leave to appeal from three interlocutory orders made by the primary judge, Judge Gibson in proceedings in the District Court.

2. The orders refused leave to the applicant to bring prosecutions for perjury, pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW), with respect to two statements on oath made by the respondent in earlier proceedings before the primary judge. The respondent was a defendant in defamation proceedings commenced by the applicant in the District Court, which had been settled. There was a dispute as to whether the respondent had complied with the conditions of the settlement agreement. On 23 April 2015 the respondent swore an affidavit in support of a declaration he had sought that the proceedings had been effectively settled. The issue in dispute was whether the respondent had complied with his obligation under the terms of the settlement to post an apology on the Facebook page of the Scotland Island community. (Both parties were part of the small community resident on Scotland Island in Pittwater.)

3. The first alleged perjury was a statement made by the respondent in his affidavit of 23 April 2015, sworn in the District Court proceedings, the particular false statement being identified in a notice of motion dated 15 December 2015. The second allegedly false statement was made in the course of cross-examination of the respondent on 5 June 2015 with respect to the same material. Both allegations were further particularised in a notice of motion filed on 13 February 2017. There…