Mohareb v Palmer

[2015] NSWCA 369

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Palmer [2015] NSWCA 369
Hearing dates:	24 November 2015
Date of orders:	24 November 2015
Decision date:	27 November 2015
Before:	Meagher JA; Bergin CJ in Eq
Decision:	1. Summons seeking leave to appeal dismissed with costs.
Catchwords:	PROCEDURE – application for leave to appeal against order refusing applicant leave to prosecute respondent for perjury under Crimes Act 1900 (NSW), s 338(1)(c) – where false statement said to have been made on oath in connection with proceedings before primary judge not identified with sufficient precision – whether arguable error in primary judge’s decision to refuse leave – application for leave to appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 327, 338(1)(c)
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Matthew Palmer (First Respondent) Annette Palmer (Second Respondent)
Representation:	Counsel: C J Dibb (Applicant) B Gelonesi (Respondents)   Solicitors: GP Legal (Respondents)
File Number(s):	2014/245461
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 30 July 2015 Before: Gibson DCJ File Number(s): 2014/243522

Judgment

1. THE COURT: Mr Mohareb sought leave to appeal from an order of the primary judge (Gibson DCJ) refusing him leave pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute the respondent for perjury. That sub-section provides that a person is not to be prosecuted for perjury except by the Director of Public Prosecutions, at the direction of the Attorney General, or by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.

2. On 24 November 2015 the Court ordered that the summons seeking leave to appeal be dismissed with costs. It reserved its reasons for the making of that order. Those reasons follow.

3. The circumstances in which the perjury is alleged to have been committed were as follows. The applicant brought proceedings against the respondent in the District Court for defamation. Those proceedings were the subject of a compromise agreement, the terms of which included that the respondent should publish an apology to the applicant on the Facebook page of the Scotland Island Community. Following the making of that agreement, the respondent posted an apology to that Facebook page on 1 April 2015. That post was taken down by the moderator of the page on the same day. Early on the following morning the moderator stated that he would not allow the post and that the respondent would be banned from the page if he attempted to post it again. The respondent replied and by email sent at 8.48am the moderator responded: “we will reinstate your post”. This was apparently done. However, between that time and 10.26pm the post was removed. It was subsequently restored on 1 May 2015.

4. These events gave rise to a dispute between the parties as to whether there was a binding agreement, whether the obligation of the respondent to publish an…