Mohareb v Palmer

[2016] NSWCA 378

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Palmer [2016] NSWCA 378
Hearing dates:	29 November 2016
Decision date:	22 December 2016
Before:	Beazley P; Meagher JA; Leeming JA
Decision:	1.   Appeal dismissed with costs, including the costs of the summons for leave to appeal;  2.   Summons dismissed with no order as to costs.
Catchwords:	CRIMINAL LAW – perjury – primary judge dismissed application by appellant pursuant to the Crimes Act 1900 (NSW), s 338(1)(c) to prosecute respondent for perjury – meaning of “false statement made on oath” – whether statement made by the respondent was false – allegation that the respondent had deliberately omitted material from an affidavit – whether an omission can form the basis for a charge of perjury   COSTS – indemnity costs – award of indemnity costs made by primary judge – basis of award for indemnity costs – whether order of primary judge should be disturbed – whether indemnity costs should be ordered against the appellant for the costs of the appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes Act 1900 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Mohareb v Palmer (No 2) [2015] NSWDC 141 Mohareb v Palmer [2015] NSWCA 369 Moss v McIlveen [2011] NSWCA 77 Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 R v Liristis [2004] NSWCCA 287; 146 A Crim R 547 Sims v Wran [1984] 1 NSWLR 317
Category:	Principal judgment
Parties:	Nader Mohareb (Appellant) Matthew Palmer (Respondent)
Representation:	Counsel: In person (Appellant) B Gelonesi (Solicitor) (Respondent)   Solicitors: In person (Appellant) B Gelonesi (Respondent)
File Number(s):	2016/97914; 2016/309194
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: Mohareb v Palmer (No 3) [2016] NSWDC 38 Date of Decision: 4 March 2016 Before: Gibson DCJ File Number(s): 2014/243522

Headnote

[This headnote is not to be read as part of the judgment]

The appellant was involved in defamation proceedings against the respondent and the respondent’s wife in relation to Facebook posts made on the Scotland Island Community Facebook Page. On 4 March 2016 the primary judge dismissed a notice of motion in which the appellant sought leave, pursuant to the Crimes Act 1900 (NSW), s 338(1)(c), to prosecute the respondent for the offence of perjury.

The incident which formed the basis of the alleged perjury occurred on 23 April 2015. In March 2015 the parties had entered into an agreement that the proceedings would be discontinued within seven days of the respondents making an apology to the appellant and using their best endeavours to have the apology published on the Scotland Island Community Facebook Page.

A dispute occurred between…