Mohareb v Palmer (No 2)

Case [2020] NSWCA 324


Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Mohareb v Palmer (No 2) [2020] NSWCA 324
Hearing dates: 5 March 2020
Date of orders: 11 December 2020
Decision date: 11 December 2020
Before: Basten JA at [1];
McCallum JA at [94];
Simpson AJA at [95]
Decision:

1.   Leave granted to appeal against the orders of 7 August 2019.

2.   Appeal allowed in part.

3.   Order 2 be set aside.

4.   Appeal otherwise dismissed.

5.   No order as to costs.

Catchwords:

CIVIL PROCEDURE — Parties — Vexatious litigants – Vexatious Proceedings Act2008 (NSW) – s 6 – meaning of “vexatious proceedings” – s 8(1) – meaning of “frequently instituted or conducted vexatious proceedings” – assessment of frequency

CIVIL PROCEDURE — Parties — Vexatious litigants – exercise of discretion – balance between access to the processes of the law and restraint of unwarranted exercise of that access

CIVIL PROCEDURE — Hearings — Procedural fairness – expansion of orders as compared to those sought – making an order in terms not foreshadowed during or after the hearing – no opportunity for parties to be heard

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 61, 73

Crimes Act 1900 (NSW), ss 326, 327, 338

Defamation Act 2005 (NSW), s 23

District Court Act 1973 (NSW), s 203

Federal Court of Australia Rules 1976 (Cth)

Judiciary Act 1903 (Cth), s 35A

Legal Profession Act 2004 (NSW) ss 345, 498

Legal Profession Uniform Conduct (Barristers) Rules 2015, r 64

Legal Profession Uniform Law Application Act 2014 (NSW), ss 62, 86; Sch 2, cll 1, 2, 4

Local Court Act 2007 (NSW), s 40

Supreme Court Act 1970 (NSW), ss 84, 75A, 101

Supreme Court Rules 1970 (NSW), Pt 55

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Vexatious Proceedings Act2008 (NSW), ss 4, 6, 8, 14-16

Cases Cited:

Attorney General of New South Wales v Croker [2010] NSWSC 942

Attorney-General v Wentworth (1988) 14 NSWLR 481

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46

Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159

Glover v Australian Concrete Floors Pty Ltd [2006] NSWSC 503

Hambleton v Labaj [2010] QSC 124

Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12

Mohareb v Palmer (No 2) [2015] NSWDC 141

Mohareb v Palmer (No 2) [2018] NSWSC 400

Mohareb v Palmer (No 3) [2016] NSWDC 38

Mohareb v Palmer (No 4) [2017] NSWDC 127

Mohareb v Palmer (Supreme Court (NSW), Fagan J, 2 September 2019, unrep)

Mohareb v Palmer [2015] NSWCA 369

Mohareb v Palmer [2015] NSWDC 134

Mohareb v Palmer [2016] NSWCA 378

Mohareb v Palmer [2017] NSWCA 281

Mohareb v Palmer [2017] NSWSC 1491

Mohareb v Palmer [2018] HCASL 18

Mohareb v Palmer [2018] NSWCA…

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AGLC
Mohareb v Palmer (No 2) [2020] NSWCA 324
Case
[2020] NSWCA 324
Decision Date

CaseChat Overview and Summary

Mohareb (the applicant) sought to appeal against orders made by the Supreme Court of New South Wales on 7 August 2019, which had declared him a vexatious litigant under the *Vexatious Proceedings Act 2008* (NSW) and made consequential orders. The primary dispute concerned whether the applicant's conduct constituted "vexatious proceedings" and whether he had "frequently instituted or conducted vexatious proceedings" within the meaning of the Act, as well as whether the Supreme Court had afforded procedural fairness in making its orders.

The Court of Appeal was required to determine whether the Supreme Court had erred in finding that the applicant had frequently instituted or conducted vexatious proceedings. It also had to consider whether the Supreme Court had acted within its discretion in making the orders it did, balancing the applicant's access to the courts against the need to restrain unwarranted litigation. A further issue was whether the Supreme Court had provided adequate notice and opportunity for the applicant to be heard on the specific terms of the orders ultimately made, particularly concerning any expansion beyond what was foreshadowed.

The Court of Appeal allowed the appeal in part, setting aside one of the Supreme Court's orders. This suggests that while the Supreme Court's finding of vexatious litigation was largely upheld, there was an issue with the specific nature or scope of the orders made, likely relating to the procedural fairness point. The court found that the applicant had not been afforded a proper opportunity to address the specific terms of that particular order. The appeal was otherwise dismissed, meaning the core declaration of vexatious litigation and most of the consequential orders stood. No order was made as to costs.

Orders

Orders of the court

1. Leave granted to appeal against the orders of 7 August 2019.

2. Appeal allowed in part.

3. Order 2 be set aside.

4. Appeal otherwise dismissed.

5. 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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