Mohareb v Palmer (No. 3)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mohareb v Palmer (No. 3) [2016] NSWDC 38
Hearing dates:	18 February 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s Notice of Motion dismissed. (2) Plaintiff pay defendant’s costs of the Notice of Motion and of this application on an indemnity basis. (3) Defendant’s Notice of Motion dismissed with no order as to costs.
Catchwords:	PROCEDURE – application by plaintiff for leave to prosecute first defendant for perjury under s 338(1)(c) Crimes Act 1900 (NSW) – whether any false statement (an asserted omission from an affidavit prepared by the first defendant’s legal advisers) was made by the first defendant in connection with the proceedings and identified with sufficient precision – application dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60 and 73 Crimes Act 1900 (NSW), s 338 Evidence Act 1995 (NSW)
Cases Cited:	Brimaud v Honeysett Pty Ltd (1988) 217 ALR 44 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors (2012) 293 ALR 384 Hickinbotham v Leach (1842) 152 ER 510 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Mohareb v Palmer [2015] NSWDC 134 Mohareb v Palmer (No. 2) [2015] NSWDC 141 Moss v McIlveen [2011] NSWCA 77 Sims v Wran [1984] 1 NSWLR 317
Texts Cited:	George, P; Allen, M; Benson, S; Collins, J; Mattson, J; Munsie, J; Rubagotti, G; Stuart, G, 2014, “Social Media and the Law” (LexisNexis Butterworth, 2014)
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb First Defendant: Matt Palmer Second Defendant: Annette Palmer
Representation:	Counsel: Plaintiff: Mr C J Dibb Defendant: Mr B Gelonesi (solicitor)   Solicitors: Plaintiff: Mr N Mohareb (in person) Defendant: GP Legal
File Number(s):	2014/243522
Publication restriction:	None

Judgment

The parties’ applications.

1. The plaintiff, Mr Mohareb, brought proceedings for defamation which are now concluded.

2. The plaintiff and first defendant now come before the court seeking relief of an unusual nature, so I propose to set out the contents of their Notices of Motion in full.

3. The plaintiff’s Notice of Motion on 15 December 2015 seeks orders as follows:

1. Leave pursuant to s 338(1)(c) Crimes Act 1900 to prosecute the Defendant/Respondent for the offence of perjury in his affidavit of 23 April 2015 (the Affidavit) as particularised below:

1. Particulars

2. The Affidavit was on oath.

3. On 23 April 2015, the Affidavit was read in the District Court of New South Wales judicial proceedings 2014/243522 as part of an application for an order pursuant to s73 Civil Procedure Act 2005 declaring that those proceedings had been settled.

4. The Affidavit was material to those proceedings in that it was relied upon for the purpose of showing why an apology - the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings - was not visible on…