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 CourtCatchwords: 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 203Cases 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 77Category: 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
-
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.
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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.)
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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…
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- AGLC
- Mohareb v Palmer [2017] NSWCA 281
- Case
- [2017] NSWCA 281
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the findings of fact made by the primary judge were open to her, whether the primary judge had impermissibly determined that contempt had been committed, and whether the issues raised were of general public importance. This was the applicant's third application concerning substantially similar issues.
The Court found that the primary judge's findings of fact were open to her. It was also determined that the primary judge had not impermissibly determined whether contempt had been committed, but rather had made findings of fact that led to the conclusion that there was no basis for a prosecution for perjury or a referral for contempt. The Court concluded that the issues raised were not of general public importance, particularly given the repetitive nature of the applications.
Consequently, the Court of Appeal refused the application for leave to appeal from the District Court's orders made on 30 May 2017 and ordered that the applicant pay the respondent's costs in the Court of Appeal.
Orders
Orders of the court
(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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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