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 was some difficulty encountered by the primary judge in identifying the precise terms of each statement.

4. The primary judge refused leave to prosecute the respondent for perjury on the basis of either allegedly false statement.

5. The applicant also sought a third order, pursuant to a further notice of motion filed on 12 May 2016, referring the respondent to the Supreme Court, pursuant to s 203 of the District Court Act 1973 (NSW), to be dealt with for an alleged contempt of court. The contempt was particularised in the notice of motion in the following terms:

“The plaintiff alleges that – on Friday 1st April 2016 at the Church Point car park in Church Point NSW – the first defendant physically assaulted the plaintiff in relation to the plaintiff’s pursuing of legal proceedings against the first defendant. (Copy of video recording of the assault is contained on the attached DVD.)”

In an affidavit sworn on 12 May 2016, the applicant alleged that the conduct of the respondent was undertaken in order to intimidate him into ceasing to pursue his legal proceedings, particularly by way of an appeal from a judgment of the primary judge in a related matter. The primary judge declined to make the order sought and dismissed the motion.

First perjury allegation

6. Both statements which were sought to be the basis of a prosecution for perjury related to the circumstances in which the respondent sought to post the necessary apology on the Facebook page of the Scotland Island community. It was not disputed that he posted the apology, but it was taken down by the moderators responsible for the material posted within about 24 hours. There was communication between the respondent and the moderators and the apology was reposted but removed almost immediately. The applicant’s claim was that the respondent was responsible for the second removal, but denied that that was so.

7. The first alleged false statement arose from the content of the respondent’s affidavit which was said to be misleading because it failed to disclose the whole of the conversation between the respondent and the moderators. The respondent said that the affidavit was prepared by his solicitor. His explanation continued: [1]

“My instruction was to confirm to the plaintiff the entire conversation that I had between the Scotland Island Facebook page and myself”.

1.    District Ct Tcpt, 5 June 2017, p 14(15).

8. With respect to this matter, the primary judge set out the relevant statutory provisions (namely ss 327 and 338 of the Crimes Act) and also the relevant principles regarding prosecutions for perjury, in particular by reference to the statement of Whealy JA in Moss v McIlveen. [2] The applicant does not complain of the statement of the law, but the reasoning of the primary judge in rejecting the application for leave.

   2. [2011] NSWCA 77: Mohareb v Palmer (No 4) [2017] NSWDC 127 at [45]-[50] (“Mohareb (No 4)”).

9. The applicant complained that there were aspects of the reasoning of the primary judge with respect to the first false statement which were unclear or misconceived. Whether or not those criticisms are sound, the judge stated that she was “comfortably satisfied that [the respondent] did tell his solicitors to put all the material before the Court because his position at all relevant times was that he did not remove the Facebook post the second time and he did not know who did, and because he knew his solicitor would swear an affidavit setting out the rest of the material.”

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.

11. The application for leave to appeal from the primary judge’s refusal to grant leave to bring proceedings for perjury based on the first allegedly false statement must be rejected.

Second perjury allegation

12. The second allegedly false statement was the respondent’s denial that it was he who had removed the apology and his statement that he did not know who did. Again, the complaint relates to the factual assessment of this evidence by the primary judge.

13. In an earlier judgment of 30 July 2015, the primary judge had found that:

“All of the evidence points to Mr Palmer having done this, although he denied it when cross-examined by the plaintiff.”

14. The fact that the primary judge had herself disbelieved the respondent in relation to this statement provides no more than a step in considering a charge of perjury.

15. In dismissing the motion, the primary judge noted that she had been “comfortably satisfied” that the respondent had, contrary to his evidence, removed the post a second time. [3]

    3. Mohareb (No 4) at [56], referring to Mohareb (No 2) at [51].

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.

Contempt

17. The third matter, being the alleged contempt, was dealt with at some length by the primary judge in considering the circumstances in which the encounter occurred and in which the alleged assault took place. The assumption by the applicant that there had been an attempt to intimidate him into abandoning an appeal in relation to an earlier judgment in the District Court depended upon inferences drawn from the conversation which took place just prior to the assault. It was described by the applicant in his evidence as a “heated exchange”.

18. The principal complaint with respect to the judge’s refusal to refer the conduct to the Supreme Court rested on the proposition that the primary judge had, wrongfully, set out to determine for herself whether a contempt had been committed. However, that was not what the primary judge did. In addition to the alleged assault, she addressed the evidence as to a number of emails between the parties. She then stated:[4]

“I agree that the contents of this correspondence is [sic] insulting and derogatory, particularly on the part of the [respondent]. The question is whether the sending of this correspondence in reply to the [respondent’s] emails to him (there being no campaign of insulting letters, or copies to third parties, or other aggravating factor) is sufficient to warrant a referral.”

4. Mohareb (No 4) at [79].

19. After setting out s 203 of the District Court Act, the judge noted that “[t]his court does not have authority to hear and determine contempt proceedings, other than when there is contempt in the face of the court”. [5] After referring to legal principles in relation to what constitutes a contempt, the judge then stated:[6]

“[85] For the power under s 203 to be exercised, there must be a finding by the court of conduct capable of amounting to contempt of court. This requires the judge first to establish the facts, and make determinations relevant to those facts which are in dispute. The whole context needs to be examined before what is said, and the manner in which it is expressed, can be identified as having crossed the line between offensive words or conduct and conduct amounting to a contempt ….

[86]   The court must then afford the potential contemnor an opportunity to show why the matter should not be referred, although that opportunity is strictly limited to the issue of reference to the Supreme Court, and does not require the person the subject of the application for referral to waive his right to silence. The judge may then, in his or her exercise of discretion, either refer the potential contemnor to the Supreme Court, or refuse to make the order.”

5. Mohareb (No 4) at [81].

6. Mohareb (No 4) at [85].

20. Although there may have been some ambiguity in the statement that the Court was required to make findings as to disputed facts, read in context, it is clear that what the judge had in mind was a finding that the conduct was “capable of” amounting to contempt of court. There was no error in undertaking that exercise.

21. On the findings of fact the judge thought appropriate, she reached the following conclusion:[7]

“Taking all of the above into account, I am satisfied that an assault occurred, but consider the parties largely equally to blame, and that the assault was not for the purpose of intimidating the [applicant] into dropping his application for leave to appeal but from the misfortune of the chance encounter. Accordingly I am not satisfied that the [respondent’s] conduct amounted to contempt of court.”

7. Mohareb (No 4) at [90].

22. It was, perhaps, unfortunate that the finding was expressed in those terms, rather than in the terms she had correctly identified earlier in her judgment. However, in reaching her final conclusions, she returned to the language of the legal test. The primary judge continued, after making the findings noted above, to conclude that, even had she considered the assault should otherwise be characterised, she would have declined to refer the matter to the Supreme Court in the exercise of her discretion. [8] After giving a reason for that opinion, she then stated:[9]

“Accordingly, if I have erred in holding that no act capable of amounting to contempt of court occurred, I would exercise my discretion not to refer the [respondent].”

8. Mohareb (No 4) at [91].

9. Mohareb (No 4) at [93].

23. In those circumstances, it cannot be said that the primary judge misapplied the law. There is no reasonable likelihood that this Court would interfere with the order. Accordingly, leave to appeal must be refused.

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.

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 [10] 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.

    10. [2003] NSWSC 1269 at [20].

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.

Orders

27. Accordingly, I propose the following orders:

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.

28. SACKVILLE AJA: I agree with the orders that have been proposed by the presiding judge. I also agree entirely with his Honour’s reasons.

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Endnotes

Decision last updated: 02 November 2017