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
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:
- 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…
Continue reading Mohareb v Palmer (No 3)
Sign in free to access the full text
- AGLC
- Mohareb v Palmer (No 3) [2021] NSWCA 39
- Case
- [2021] NSWCA 39
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.