Mohareb v Palmer (No 3)

[2021] NSWCA 39

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v Palmer (No 3) [2021] NSWCA 39

Hearing dates:

On the papers

Date of orders:

22 March 2021

Decision date:

22 March 2021

Before:

Basten JA

Decision:

(1)   With respect to the applicant’s summons filed on 14 October 2019, challenging the orders made under the Vexatious Proceedings Act 2008 (NSW), in the Common Law Division, on 7 August and 2 September 2019, grant the applicant leave to institute the application for leave to appeal pursuant to s 16 of the Vexatious Proceedings Act, effective on and from 14 October 2019.

(2)   With respect to the applicant’s notice of motion filed on 3 March 2021,

(a)   direct that the emailed letter from the Registrar to Nader Mohareb dated 10 March 2021, and Mr Mohareb’s reply to the Registrar dated 17 March 2021 be marked Ex A on the motion;

(b)   dismiss the motion as incompetent.

Catchwords:

APPEAL – application for leave to appeal – applicant subject to vexatious proceedings order – whether leave required to file summons seeking leave to challenge order – appeal heard – whether leave required to file notice of motion seeking to vary orders

CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings – whether leave required to file application to appeal vexatious proceedings order – whether leave required to file notice of motion seeking to vary orders made on appeal

JUDGMENT AND ORDERS – orders entered – application to vary orders – notice of motion not filed within 14-day period specified by rules – power to extend time – Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW), ss 4, 5, 8, 13, 14, 16

Supreme Court Act 1970 (NSW), ss 46, 101

Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16, 51.41

Cases Cited:

Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133

DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17

Fokas v Mansfield (No 3) [2017] NSWCA 315

Macatangay v New South Wales (No 2) [2009] NSWCA 272

Mohareb v Palmer (No 2) [2020] NSWCA 324

Category:

Procedural rulings

Parties:

Nader Mohareb (Applicant)
Matthew Palmer (First Respondent)
Attorney-General of NSW (Second Respondent)

Representation:

Counsel:

Solicitors:
Applicant self-represented

File Number(s):

2019/267950

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 975

Date of Decision:

7 August 2019

Before:

Fagan J

File Number(s):

2018/217228

Judgment

1. BASTEN JA: On 7 August 2019 Fagan J made orders under the Vexatious Proceedings Act 2008 (NSW), including order 1, that Nader Mohareb “is prohibited from instituting any proceeding against the plaintiff, Matthew Palmer, in New South Wales.” On 14 October 2019, Mr Mohareb filed a summons seeking leave to appeal from those orders. In an ordinary case, leave would be required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). However, there is an issue as to whether leave was also required, before the filing of the summons, pursuant to s 13(1) of the Vexatious Proceedings Act. It will be necessary to return to this issue.

2. On 11 December 2020 the Court handed down judgment, granting leave to appeal against the orders of 7 August 2019, setting aside order 2, but otherwise dismissing the appeal. [1] (Order 2 prohibited Mr Mohareb “from instituting any new proceeding against any person in New South Wales”, other than by steps relating to proceedings already on foot.) Order 1 therefore continues to operate.

   1. Mohareb v Palmer (No 2) [2020] NSWCA 324.

3. By notice of motion filed on 3 March 2021, the applicant sought orders varying each of the orders made by this Court on 11 December 2020. He also sought an extension of time within which to vary the Court’s orders of 11 December 2020. The application sought in substance to re-open the dispositive findings of the Court. Thirdly, he sought the recusal of the majority judges in this Court from hearing and determining his motion.

4. The recusal application may be put to one side. There are issues relating to the competence of the other orders sought in the notice of motion which can be disposed of by a single judge of the Court. [2]

Vexatious Proceedings Act – leave requirement

2. Supreme Court Act, s 46(1)(b); Uniform Civil Procedure Rules 2005 (NSW), r 51.41; Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [14]-[16]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [24].

5. In response to the filing of the notice of motion on 3 March 2021, the Registrar invited Mr Mohareb to make submissions as to why the motion was not stayed by virtue of s 13 of the Vexatious Proceedings Act with the result that, if not otherwise dismissed, it would be taken to be dismissed at the expiration of 28 days after it was filed.

6. By way of letter to the Registrar dated 17 March 2021, which will be placed on the file and (with the Registrar’s email to him) marked Exhibit A on the motion, Mr Mohareb addressed that question. Before turning to his submissions, it is convenient to explain the statutory provisions which potentially had the effect the Registrar had identified.

7. The order made by Fagan J was a “vexatious proceedings order” within s 8 of the Vexatious Proceedings Act. The order was made pursuant to s 8(7)(b) “prohibiting the person from instituting proceedings in New South Wales”. The term “institute” is relevantly defined in the following terms:

5   Instituting proceedings

(1)   In this Act, institute, in relation to proceedings, includes:

(a)   for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, …

8. The term “proceedings” is also defined, as follows:

4   Meaning of “proceedings”

In this Act, proceedings includes:

(a)   any civil proceedings, criminal proceedings or proceedings before a tribunal, and

(b)   any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(c)   any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and

(d)   any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and

(e)   any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.

9. The scope of the prohibition is therefore potentially extremely broad, depending upon the scope of the particular vexatious proceedings order. However, the prohibition is not absolute. There is power under s 14 for a person subject to a vexatious proceedings order to apply for leave to institute proceedings that would otherwise be prohibited. There is a process for making such an application. Section 16 provides that an “appropriate authorised court” may grant leave to institute proceedings. The term “appropriate authorised court” is defined, and relevantly for present purposes is the Supreme Court. There is a procedure specified for dealing with applications for leave. Importantly for present purposes, s 16 further provides:

16   Granting application for leave

…

(4A)   A grant of leave to institute proceedings made under this section includes leave to make interlocutory applications, and other procedural applications, in connection with or incidental to those proceedings, unless the grant of leave specifies otherwise.

10. In his submission to the Registrar, Mr Mohareb observed that if s 13 had the operation suggested by the Registrar he would have needed leave to file the application for leave to appeal from the judgment of Fagan J imposing the vexatious proceedings order. He further observed that no one had yet suggested to him that the prohibition operated in this way.

11. In my view, Mr Mohareb’s point is fairly taken. That is not to suggest that he did not require leave under the Vexatious Proceedings Act to commence his application for leave to appeal. However, the fact that the application was listed for a concurrent hearing by the President, and was addressed in substance by the Attorney as intervenor, without any point being taken either in writing or at the commencement of the hearing in this Court, suggests that there was at least an implicit grant of leave under s 14 of the Vexatious Proceedings Act. If there were not, the order of this Court granting leave to appeal under s 101 of the Supreme Court Act demonstrates that, had the Court’s attention been drawn to the need for leave to file the summons, leave would almost certainly have been granted. It might be added that, except in cases where there was simply no room for a different view to be taken from that of the trial judge, leave would usually be given to commence proceedings to challenge the making of a vexatious proceedings order. It would not generally be conducive to the proper administration of justice that a person subject to a prohibition imposing significant constraints on his or her access to justice should not be allowed to challenge the very order which imposed those constraints.

12. From an abundance of caution, and in order to maintain a proper record of the proceedings in this Court, I propose, exercising the authority of a judge of the Supreme Court, as an authorised court, to grant leave to Mr Mohareb to institute proceedings by way of the summons filed on 14 October 2019. That order will take effect as from the date on which the summons was filed.

13. The effect of regularising the position under the Vexatious Proceedings Act in that way is that the grant of leave includes leave to make interlocutory and other procedural applications, pursuant to s 16(4A). Leaving aside the applications for recusal, orders (2) and (3)-(7) sought by the applicant in his notice of motion of 3 March 2021 comprise such interlocutory or procedural applications.

Application to vary orders

14. Neither the notice of motion itself, nor the lengthy submissions (extending to some 38 pages) filed on 17 March 2021, identified the need for order (2), requesting “an extension of time to seek to vary the Court’s 11^th December 2020 orders.” The time limitation, as explained in standard form on the coversheet of judgments issued by the Court, derives from Pt 36 of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR) and particularly the 14-day limitation period specified in r 36.16.

15. Conventionally, the Court always had power to vary an order after judgment was delivered, so long as the application for variation was made before the orders were “entered” and the court record “perfected”. Thereafter, a party was limited to his or her rights of appeal. [3] Pursuant to UCPR r 36.11, all judgments and orders of the court are to be entered; further, they are taken to be entered when recorded in the Court’s computerised court record system. That, absent a direction to the contrary, will usually happen on the day judgment is delivered.

    3. DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [32]-[41].

16. Prior to the use of a computerised record system, a party seeking to have orders entered provided a written minute of the proposed orders for the Registrar to enter. That allowed an opportunity for the parties to ensure that the orders were in proper form. The rules recognise, however, that there may be mistakes made in the entry of orders; an opportunity for correction is now provided by r 36.16, which allows for the filing of a motion for the setting aside or variation of a judgment or order after the order has been entered, so long as the motion is made within 14 days. However, the Court may not extend the time so limited: r 36.16(3C). [4]

    4. Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133.

17. Mr Mohareb’s notice of motion was filed on 3 March 2021, long after the expiry of the 14 day period prescribed by the rules. It follows that the Court has no power to grant the extension of time sought by order (2). Further, absent an extension of time, the motion seeking to vary each of the orders made by the Court on 11 December 2020 (orders (3)-(7) in the notice of motion) seeks relief beyond the power of the Court.

Conclusions

18. Because the Court has no further function to exercise with respect to this matter, the application for the recusal of the majority judges lacks utility. Accordingly, the notice of motion should be dismissed.

19. It is convenient to note that the written submissions filed by the applicant in support of his motion on 17 March 2021 contained seven major headings (and a conclusion) addressing specific paragraphs in the leading judgment of Simpson AJA and taking issue with either underlying premises (for example whether there was evidence of a particular matter) or alleging a misunderstanding of the arguments put, both in writing and orally, or simply disagreeing with the reasoning. These are precisely the kind of matters which could form the basis of an appeal; even were the application made in time, they are not the kind of matters which would attract an order which had the substantive effect of reopening the whole of the appeal and challenging each of the dispositive findings.

Orders

20. The Court makes the following orders:

1. With respect to the applicant’s summons filed on 14 October 2019, challenging the orders made under the Vexatious Proceedings Act 2008 (NSW), in the Common Law Division, on 7 August and 2 September 2019, grant the applicant leave to institute the application for leave to appeal pursuant to s 16 of the Vexatious Proceedings Act, effective on and from 14 October 2019.

2. With respect to the applicant’s notice of motion filed on 3 March 2021,

1. direct that the emailed letter from the Registrar to Nader Mohareb dated 10 March 2021, and Mr Mohareb’s reply to the Registrar dated 17 March 2021 be marked Ex A on the motion;

2. dismiss the motion as incompetent.

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Endnotes

Decision last updated: 22 March 2021