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

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…

Grounds of appeal

[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.

Continue reading Mohareb v Palmer (No 3)

Details

AGLC: Mohareb v Palmer (No 3) [2021] NSWCA 39
Case: [2021] NSWCA 39
Decision Date: 22 March 2021

CaseChat Overview and Summary

In *Mohareb v Palmer (No 3)*, the applicant, Nader Mohareb, who was subject to a vexatious proceedings order, sought leave to appeal against orders made by the Common Law Division on 7 August and 2 September 2019, and subsequently sought to vary orders made on appeal. The proceedings involved an application for leave to appeal a vexatious proceedings order and a notice of motion seeking to vary orders made on appeal.

The primary legal issues before the court were whether the applicant required leave to file a summons seeking leave to appeal the vexatious proceedings order, and whether leave was required to file a notice of motion seeking to vary the orders made on appeal. The court also considered the timeliness of the notice of motion, which was filed outside the 14-day period specified by rule 36.16 of the *Uniform Civil Procedure Rules 2005* (NSW), and the court's power to extend time.

The court determined that leave was required to institute proceedings challenging the vexatious proceedings order, and granted the applicant leave to do so retrospectively from 14 October 2019. However, the court found the subsequent notice of motion to vary the appeal orders to be incompetent, dismissing it. The court noted that the notice of motion was filed outside the prescribed time limit and did not demonstrate grounds for an extension of time.

Consequently, the court made orders granting the applicant leave to institute the application for leave to appeal the vexatious proceedings order, effective from 14 October 2019. The court also ordered that certain correspondence be marked as exhibits and dismissed the applicant's notice of motion as incompetent.

Orders

Orders of the court

(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.

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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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