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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.