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Mohareb v Palmer (No. 4)

Mohareb v Palmer (No. 4)

Case [2017] NSWDC 127 30 May 2017

Civil Litigation & Procedure

Contempt of Court

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District Court

New South Wales

Medium Neutral Citation: Mohareb v Palmer (No. 4) [2017] NSWDC 127
Hearing dates: 8 May 2017
Date of orders: 30 May 2017
Decision date: 30 May 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff’s notices of motion dismissed.
(2) A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained until further order.

Catchwords: PRACTICE AND PROCEDURE – application by plaintiff for leave to prosecute first defendant for perjury under Crimes Act 1900 (NSW), s 338(1)(c) – false statements said to have been made on oath – whether evidence proves the falsity – absence of evidence to support application – application dismissed
CONTEMPT OF COURT – application by plaintiff for referral, pursuant to District Court Act 1973 (NSW) s 203, of the first defendant to the Supreme Court for determination in relation to contempt of court for his assault of the plaintiff – whether the facts establish contempt of court or a dispute between two angry litigants – whether, in the exercise of discretion, the conduct in question should be referred – application dismissed
REFERRAL TO COMMISSIONER OF POLICE – evidence of rising hostility in the small island community in which the plaintiff and defendants reside – referral of judgment to the Commissioner of Police
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Crimes Act 1900 (NSW), ss 327 and 338(1)(c)
District Court Act 1973 (NSW), s 203
Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Balogh v St Albans Crown Court [1975] QB 73
Bar-Mordecai v Hillston [2003] NSWSC 1269
Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503
Gregory v Philip Morris Ltd (1987) 74 ALR 300
Harkianakis v Skalkos (1997) 42 NSWLR 22
Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Lin v Borrowdale [2011] NSWCA 65
Mohareb v Kelso [2017] NSWCA 98
Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208
Mohareb v Palmer [2015] NSWDC 134
Mohareb v Palmer [2015] NSWCA 369
Mohareb v Palmer [2016] NSWDC 38
Mohareb v Palmer [2016] NSWCA 378
Mohareb v Palmer (No 2) [2015] NSWDC 141
Moss v McIlveen [2011] NSWCA 77
Mwanri v Mwanri [2015] ONCA 843
Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
Powell v In De Braekt [2007] WASC 165
R v Loveday; ex parte Attorney-General [1982] WAR 65
R v McLachlan [1998] 2 VR 55
Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96
Re Manlio [2016] VSC 130
Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Texts Cited: Professor I. Cram, Borrie and Lowe: The Law of Contempt, 5th ed. (LexisNexis UK)
Category: Procedural and other rulings
Parties: Plaintiff: Nader Mohareb
First Defendant: Matthew…

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. 4)

Details

AGLC: Mohareb v Palmer (No. 4) [2017] NSWDC 127
Case: [2017] NSWDC 127
Decision Date: 30 May 2017

CaseChat Overview and Summary

The case of Mohareb v Palmer (No. 4) was heard in the District Court of New South Wales. The plaintiff, Mohareb, sought to have the first defendant, Palmer, prosecuted for perjury under the Crimes Act 1900 (NSW) and for contempt of court under the District Court Act 1973 (NSW). Mohareb alleged that Palmer made false statements on oath and assaulted him, both of which Palmer denied. The court was required to determine whether there was sufficient evidence to support the application for leave to prosecute Palmer for perjury, and whether Palmer's conduct constituted contempt of court.

The court considered the evidence presented and concluded that there was no evidence to prove the falsity of the statements made by Palmer on oath. As such, the application for leave to prosecute Palmer for perjury was dismissed. Furthermore, the court found that the alleged assault did not amount to contempt of court but rather was a dispute between two litigants. The court exercised its discretion not to refer the matter to the Supreme Court for determination in relation to contempt of court. The court also noted the rising hostility in the small island community where the parties reside and referred the judgment to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island.

The court dismissed all of Mohareb's notices of motion and ordered that a copy of the judgment be provided to the Commissioner of Police. The court also granted liberty to apply in relation to costs and directed that the exhibits be retained until further order. The case highlights the importance of evidence in supporting applications for leave to prosecute for perjury and the court's discretion in determining whether conduct amounts to contempt of court.

Orders

Orders of the court

(1) Plaintiff’s notices of motion dismissed.

(2) A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island.

(3) Liberty to apply in relation to costs.

(4) Exhibits retained until further order.

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.

Citations

AGLC Citation

Mohareb v Palmer (No. 4) [2017] NSWDC 127

Most Recent Citation

Rich v Auswide Constructions Pty Ltd (No 3) [2021] QDC 2

Cases citing this decision · 7 of 7 shown

Leighton-Daly v Antoinette Campbell Pty Ltd ACN 604 388 909
[2025] NSWCATEN 3 Para 25

…The power to punish for contempt is to be used sparingly and only in serious cases ( Mohareb v Palmer (No. 4) [2017] NSWDC 127; DBI v ZTT [2021] NSWCATEN 4). To constitute contempt, conduct must amount to wilful, as opposed to “a casual, accidental or unintentional” failure to comply with, in this case, a Summons (…
The Owners – Strata Plan No 38308 v Gelder (No 2)
[2023] NSWCATEN 7 Para 24

…levant consideration is that the power to punish for contempt is to be used “sparingly” and only in “serious cases” ( Mohareb v Palmer (No 4) [2017] NSWDC 127).…
DVI v ZTT
[2021] NSWCATEN 4

…ews v ASIC [2009] NSWCA 155 Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Mohareb v Palmer [2017] NSWCA 281 Mohareb v Palmer (No. 4) [2017] NSWDC 127 O’Connor & Ors v Hough & Ors (No 2) [2017] QSC 68 Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105 Registrar of the Court of Ap…
Rich v Auswide Constructions Pty Ltd (No 3)
[2021] QDC 2 Para 26

…le [1995] 2 VR 188. [7] Craig v Slater [2017] NZHC 874 and other cases referred to below. [8]Counsel also relied on Mohareb v Palmer (No 4) [2017] NSWDC 127, [108] and Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96, [16]-[18].…
Mohareb v Palmer (No 2)
[2020] NSWCA 324 Para 34

…as that there was no longer reliance upon the respondent’s affidavit, but rather his answers in the witness box. [21] 20. Mohareb v Palmer (No 4) [2017] NSWDC 127 at [32]. 21. Ibid at [33].…
Palmer v Mohareb
[2019] NSWSC 975 Para 13

…below as part of the Fifth Proceeding). Her Honour found that the conduct alleged was not capable of amounting to contempt: Mohareb v Palmer (No. 4) [2017] NSWDC 127 at [85]-[93]. Leave to appeal was refused: Mohareb v Palmer [2017] NSWCA 281 at [17]-[23]. Where an application to have Mr Palmer charged with contem…
Mohareb v Palmer
[2017] NSWCA 281 Para 8

…the statement of the law, but the reasoning of the primary judge in rejecting the application for leave. 2. [2011] NSWCA 77: Mohareb v Palmer (No 4) [2017] NSWDC 127 at [45]-[50] (“Mohareb (No 4)”).…

View all 7 citing cases →

Cases cited in this decision · 23 of 23 shown

Mohareb v Kelso
[2017] NSWCA 98 Para 2

…his evidence by 24 March 2016 ( Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 at [24]), the plaintiff appears to have indicated ( Mohareb v Kelso [2017] NSWCA 98 at [25] and [34]) that he proposes to bring fresh proceedings against these additional parties in relation to these incidents.…
Rafidi v Commonwealth Bank of Australia Ltd
[2017] NSWCA 96 Para 109

…d, and the manner in which the presiding judge should consider taking such as step, are both explained in Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 at [16]-[18] as follows:…
Bookarelli Pty Ltd v Katanga Developments Pty Ltd
[2017] NSWCA 69 Para 112

…g the nineteenth-century nature of referral procedures generally, including multiple applications ( Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 at [54]), proportionality ( Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168 – 169) and the impact of technology ( Borrie and Lowe: The Law of Contemp…
Mohareb v Palmer
[2016] NSWCA 378 Para 4

…[10], [13] – [16]); Mohareb v Palmer [2016] NSWDC 38), both of which were dismissed on appeal: Mohareb v Palmer [2015] NSWCA 369; Mohareb v Palmer [2016] NSWCA 378 at [43] – [48]. This is the plaintiff’s third application for orders under s 338(1)(c) and his first application under s 203 District Court Act 1973 (N…
Mohareb v Kelso; Mohareb v Booth
[2016] NSWDC 208 Para 7

…of which includes a claim for defamation for publication of the poster: see the list of court proceedings set out in Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 at [3] – [21].…
Re Manlio (No 2)
[2016] VSC 130 Para 108

…clude the court making an inquiry of its own motion into the conduct of a party or a legal representative if the circumstances warrant it ( Re Manlio [2016] VSC 130), but that is not what concerns me here.…
Mohareb v Palmer (No. 3)
[2016] NSWDC 38 Para 4

…ssful applications pursuant to s 338(1)(c) Crimes Act 1900 (NSW) ( Mohareb v Palmer (No 2) [2015] NSWDC 141 at [10], [13] – [16]); Mohareb v Palmer [2016] NSWDC 38), both of which were dismissed on appeal: Mohareb v Palmer [2015] NSWCA 369; Mohareb v Palmer [2016] NSWCA 378 at [43] – [48]. This is the plaintiff’s…
Mohareb v Palmer
[2015] NSWCA 369 Para 4

…v Palmer (No 2) [2015] NSWDC 141 at [10], [13] – [16]); Mohareb v Palmer [2016] NSWDC 38), both of which were dismissed on appeal: Mohareb v Palmer [2015] NSWCA 369; Mohareb v Palmer [2016] NSWCA 378 at [43] – [48]. This is the plaintiff’s third application for orders under s 338(1)(c) and his first application und…
Mohareb v Palmer (No 2)
[2015] NSWDC 141 Para 4

…ackground, the plaintiff has previously brought two unsuccessful applications pursuant to s 338(1)(c) Crimes Act 1900 (NSW) ( Mohareb v Palmer (No 2) [2015] NSWDC 141 at [10], [13] – [16]); Mohareb v Palmer [2016] NSWDC 38), both of which were dismissed on appeal: Mohareb v Palmer [2015] NSWCA 369; Mohareb v Palmer…
Mohareb v Palmer
[2015] NSWDC 134 Para 4

…nd Island, the plaintiff allegedly filmed residents who were objecting to this practice (see the text of the matter complained of in Mohareb v Palmer [2015] NSWDC 134 at [8]). This poster was the subject of the settled defamation proceedings in Mr Mohareb’s action against Mr and Mrs Palmer, but it is also one of th…
Moss v McIlveen
[2011] NSWCA 77 Para 29

…f the Facebook page about which the plaintiff complains. Nor is there any corroborative witness evidence of the kind referred to in Moss v McIlveen [2011] NSWCA 77 at [18] – [19].…
Lawrence Lin v Ian Borrowdale
[2011] NSWCA 65 Para 81

…than when there is contempt in the face of the court: Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 463 – 465; Lin v Borrowdale [2011] NSWCA 65 at [3]. Section 203 therefore involves a procedure of first determining whether there is a contempt, then affording the person an opportunity to be hea…
Powell v In De Braekt
[2007] WASC 165 Para 82

…isfied by reckless disregard of the likely effect of such a threat” (at 308). In reviewing similar examples, Simmonds J, in Powell v In De Braekt [2007] WASC 165 at [57], emphasises that the question is whether the conduct poses a “real risk” that justice will be interfered with, or there is a “real and definite t…
Glover v Australian Ultra Concrete Floors Pty Ltd
[2006] NSWSC 503 Para 48

…sufficient to support a conviction before leave under s 338 will be granted, as Simpson J noted in Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503 at [31]:…
Bar-Mordecai v Hillston
[2003] NSWSC 1269 Para 50

…It is not sufficient for there to be a finding by a judicial officer that a witness has told a lie. In Bar-Mordecai v Hillston [2003] NSWSC 1269, Bryson J made the following observations as to the policy considerations underpinning the legislation and the kind of circumstances necessary before such a step would be c…
Harkianakis v Skalkos (No 2)
[1997] NSWCA 137 Para 83

…expressed, can be identified as having crossed the line between offensive words or conduct and conduct amounting to a contempt: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 42C, 69F.…
R v Rogerson
[1992] HCA 25

…s for the court, not the adversary, to determine whether a witness is telling the truth. This is one aspect of the process of justice: R v Rogerson (1992) 174 CLR 268 at 280, per Brennan, Toohey JJ.”…
Hanrahan v Ainsworth
[1991] NSWCA 141 Para 112

…including multiple applications ( Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 at [54]), proportionality ( Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 168 – 169) and the impact of technology ( Borrie and Lowe: The Law of Contempt at 1.6 and 10.6 et passim). One of the most pressing of these probl…
Registrar of the Court of Appeal v Maniam
[1991] NSWCA 236 Para 81

…ty to hear and determine contempt proceedings, other than when there is contempt in the face of the court: Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459 at 463 – 465; Lin v Borrowdale [2011] NSWCA 65 at [3]. Section 203 therefore involves a procedure of first determining whether there is a contempt, t…
Gregory v Philip Morris Ltd
[1988] FCA 169 Para 82

…d sparingly and only in serious cases: R v Loveday; ex parte Attorney-General [1982] WAR 65 at 70 per Kennedy J, cited in Gregory v Philip Morris Ltd (1987) 74 ALR 300. This is wholly contrary to the submissions of the plaintiff, which were that “mere appearance [of contempt of court] was enough” and that a very low…
Hinch v Attorney-General (Vic)
[1987] HCA 56 Para 82

…he conduct complained of has a “clear tendency to prejudice the due administration of justice” (citing Hinch v Attorney-General (Vic) (1987) 164 CLR 15).…
Gregory v Philip Morris Ltd
[1987] FCA 406 Para 82

…or contempt is one to be used sparingly and only in serious cases: R v Loveday; ex parte Attorney-General [1982] WAR 65 at 70 per Kennedy J, cited in Gregory v Philip Morris Ltd (1987) 74 ALR 300. This is wholly contrary to the submissions of the plaintiff, which were that “mere appearance [of contempt of court] was enough” and that…
[1975] QB 73
[1975] QB 73 Para 81

…exisNexis UK), at 10.6, states that where the behaviour has been insulting only, the position adopted by Denning LJ in Balogh v St Albans Crown Court [1975] QB 73 at 86 is advisable: “…insults are best treated with disdain, except where gross and scandalous.”…

Legislation cited in this decision · 4

Crimes Act 1900 (ACT)
327, 338(1)(c) 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 3)
District Court Act 1973 (NSW)
203 2 mentions (from Para 2)
Uniform Civil Procedure Rules 2005 (NSW)
31.28 2 mentions (from Para 3)

Medium Neutral Citation:	Mohareb v Palmer (No. 4) [2017] NSWDC 127
Hearing dates:	8 May 2017
Date of orders:	30 May 2017
Decision date:	30 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s notices of motion dismissed. (2) A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island. (3) Liberty to apply in relation to costs. (4) Exhibits retained until further order.
Catchwords:	PRACTICE AND PROCEDURE – application by plaintiff for leave to prosecute first defendant for perjury under Crimes Act 1900 (NSW), s 338(1)(c) – false statements said to have been made on oath – whether evidence proves the falsity – absence of evidence to support application – application dismissed CONTEMPT OF COURT – application by plaintiff for referral, pursuant to District Court Act 1973 (NSW) s 203, of the first defendant to the Supreme Court for determination in relation to contempt of court for his assault of the plaintiff – whether the facts establish contempt of court or a dispute between two angry litigants – whether, in the exercise of discretion, the conduct in question should be referred – application dismissed REFERRAL TO COMMISSIONER OF POLICE – evidence of rising hostility in the small island community in which the plaintiff and defendants reside – referral of judgment to the Commissioner of Police
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Crimes Act 1900 (NSW), ss 327 and 338(1)(c) District Court Act 1973 (NSW), s 203 Uniform Civil Procedure Rules 2005 (NSW), r 31.28
Cases Cited:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Balogh v St Albans Crown Court [1975] QB 73 Bar-Mordecai v Hillston [2003] NSWSC 1269 Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503 Gregory v Philip Morris Ltd (1987) 74 ALR 300 Harkianakis v Skalkos (1997) 42 NSWLR 22 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 Lin v Borrowdale [2011] NSWCA 65 Mohareb v Kelso [2017] NSWCA 98 Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 Mohareb v Palmer [2015] NSWDC 134 Mohareb v Palmer [2015] NSWCA 369 Mohareb v Palmer [2016] NSWDC 38 Mohareb v Palmer [2016] NSWCA 378 Mohareb v Palmer (No 2) [2015] NSWDC 141 Moss v McIlveen [2011] NSWCA 77 Mwanri v Mwanri [2015] ONCA 843 Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 Powell v In De Braekt [2007] WASC 165 R v Loveday; ex parte Attorney-General [1982] WAR 65 R v McLachlan [1998] 2 VR 55 Rafidi v Commonwealth Bank of Australia Ltd [2017] NSWCA 96 Re Manlio [2016] VSC 130 Registrar, Court of Appeal v Maniam (No 1) (1991) 25 NSWLR 459
Texts Cited:	Professor I. Cram, Borrie and Lowe: The Law of Contempt, 5th ed. (LexisNexis UK)
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb First Defendant: Matthew…