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 appealLegislation 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 317Category: Principal judgment Parties: Nader Mohareb (Appellant)
Matthew Palmer (Respondent)Representation: Counsel:
Solicitors:
In person (Appellant)
B Gelonesi (Solicitor) (Respondent)
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…
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- AGLC
- Mohareb v Palmer [2016] NSWCA 378
- Case
- [2016] NSWCA 378
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were twofold. Firstly, the Court had to determine the meaning of a "false statement made on oath" in the context of perjury, and whether an omission of material from an affidavit could satisfy this definition. Secondly, the Court was required to consider the primary judge's award of indemnity costs against the appellant and whether this order, along with the decision to dismiss the prosecution application, should be disturbed.
The Court of Appeal affirmed the primary judge's decision, holding that a deliberate omission from an affidavit, without any positive assertion that was false, did not constitute a "false statement made on oath" for the purposes of a perjury charge under the *Crimes Act 1900* (NSW). The Court reasoned that perjury requires a positive assertion of falsehood, not merely the withholding of information. Consequently, the appeal was dismissed. The Court also ordered that the appellant pay the costs of the appeal, including the costs of the summons for leave to appeal, while the summons itself was dismissed with no order as to costs.
Orders
Orders of the court
1. Appeal dismissed with costs, including the costs of the summons for leave to appeal;
2. Summons dismissed with no order as to costs.
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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