Mohareb v State of New South Wales (No 2)

[2024] NSWCA 69

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69

Hearing dates:

On the papers (last submissions 18 March 2024)

Date of orders:

28 March 2024

Decision date:

28 March 2024

Before:

Gleeson JA; Stern JA

Decision:

(1)   Dismiss the applicant’s notice of motion filed 6 December 2023.

(2)   The applicant to pay the first respondent’s and the second respondent’s costs of the motion.

Catchwords:

JUDGMENTS AND ORDERS — Court of Appeal — motion to set aside order refusing leave to appeal —application under UCPR, rr 36.15, 36.16, 36.17 — whether orders made against good faith — where no misconduct or dishonourable conduct by the respondents — whether Court misapprehended the applicant’s evidence or submissions — where no basis for setting aside judgment established

COURTS AND JUDGES — bias — where applicant requested notice of motion be heard by differently constituted bench — where members of bench participated in earlier decision refusing leave to appeal — whether previous adverse decision can ground reasonable apprehension of bias — recusal application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Supreme Court Act 1970 (NSW), s 63

Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 36.16(3A), 36.17, 42.1

Cases Cited:

Berg v Director of Public Prosecutions (Qld) [2016] 2 Qd R 248; [2015] QCA 196

Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314

Clark v Attorney-General of New South Wales (Recusal Application No 2) [2023] NSWCA 209

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Mohareb v Kelso [2023] NSWSC 826

Mohareb v State of New South Wales [2023] NSWCA 289

NSW Bar Association v Muirhead (1988) 14 NSWLR 173

Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 2

Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category:

Principal judgment

Parties:

Nader Mohareb (Applicant)
State of New South Wales (First respondent)
Northern Beaches Council (Second respondent)
Alexander Edward Kelso (Third respondent)
Taylor Booth (Fourth respondent)

Representation:

Counsel:
A N Williams (First respondent)
J P Guihot (Second respondent)

Solicitors:
N Mohareb (Self-represented) (Applicant)
Crown Solicitor for NSW (First respondent)
Moray & Agnew (Second respondent)

File Number(s):

2023/256144

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 826

Date of Decision:

14 July 2023

Before:

Campbell J

File Number(s):

2020/174984

Judgment

1. THE COURT: On 4 December 2023, the Court dismissed an application for leave to appeal from a decision of Campbell J on 14 July 2023 dismissing Mr Nader Mohareb’s application for the transfer of three civil proceedings in the District Court to the Supreme Court and, in the alternative, the transfer of a criminal contempt proceeding in the Supreme Court to the District Court: Mohareb v State of New South Wales [2023] NSWCA 289. Orders were also made that Mr Mohareb pay the first respondent’s and the second respondent’s costs in this Court.

2. By notice of motion filed 6 December 2023, Mr Mohareb seeks the following relief pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 36.15, 36.16 and/or 36.17:

(1)   Order (1) to be varied so that there is a grant of leave from the whole of the primary judge’s 14 July 2023 decision.

(2   Order (2) is set aside.

(3)   The respondents to pay the applicant’s costs/disbursements of this notice of motion.

3. The affidavit in support attached the transcript of the hearing on 1 December 2023 and some correspondence with the Registrar concerning filing fees and a request that the motion be determined by judges other than the two judges who presided over and determined the leave application. The Registrar made directions for the exchange of written submissions and directed that, in the absence of good reasons being shown, the motion be heard and determined on the papers. Mr Mohareb filed submissions-in-chief dated 26 February 2024 and in reply dated 18 March 2024. The first and second respondents also filed submissions. Paragraph 14 of Mr Mohareb’s submissions-in-chief submitted that his motion should be heard and determined in open court.

4. In subsequent correspondence with the Registrar dated 19 March 2024, Mr Mohareb complained that he did not submit any “recusal application”, asserting that his request for his motion to be determined by a judge or judges other than the judges who dealt with the leave application was made “pursuant to the provisions of the ALRC December 2021 Summary Report, entitled ‘Without Fear of (sic) Favour: Judicial Impartiality and the Law of Bias’”. He said that it was inappropriate and procedurally incorrect that his motion be dealt with as if it were a recusal motion because the provisions of the ALRC December 2021 Summary Report “had been put in place, precisely in order to replace and avoid recusal applications, in which judicial officers are empowered – in the face of the obvious conflict of interest – to consider and decide about their own recusal”.

5. Mr Mohareb’s reference to the ALRC December 2021 Summary Report is misplaced. That report does not govern or dictate how judges of this Court should deal with recusal applications. Nor can Mr Mohareb’s characterisation of his request concerning the composition of the Court to deal with his motion be accepted. The stated basis of his request that the judges who dealt with the leave application have an “obvious conflict of interest” to consider and decide about their recusal, involves an assertion of apprehended or actual bias.

Recusal application

6. Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55. That is because the necessary result, if bias is established, is a retrial, or in this case, a rehearing: Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J).

7. The recusal application arises from our prior involvement in refusing Mr Mohareb’s application for leave to appeal from a judgment given against him by Campbell J in the Common Law Division: Mohareb v Kelso [2023] NSWSC 826.

8. An allegation of actual bias is a serious allegation that should not be made unless there are proper grounds for it: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. No such ground is identified by Mr Mohareb and we reject that allegation.

9. The test for recusal for apprehended bias is the “double might” test: that is, whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31].

10. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case may not be decided on the merits: Ebner at [8], Michael Wilson at [32]-[33].

11. Mr Mohareb asserts an “obvious conflict of interest” and submits that the hypothetical, reasonable bystander “would tend to be skeptical & dismissive of a self-represented litigant’s casting aspersions on the findings of two Court of Appeal judges” having regard to the nature of the contentions he now advances. The fact that we have previously made a decision adverse to the Mr Mohareb’s interests is not a sufficient basis upon which such an observer might reasonably consider that we might not bring an impartial and unprejudiced mind to the resolution of the issues on the motion in these proceedings. The mere fact that a judge has made an adverse decision or decisions against a party is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party: Clark v Attorney-General of New South Wales (Recusal Application No 2) [2023] NSWCA 209 at [9]; Berg v Director of Public Prosecutions (Qld) [2016] 2 Qd R 248; [2015] QCA 196 at [67]-[71]. That is the case even where, as here, the subsequent application is premised upon alleged “disregard, misrepresentation and/or deliberate misapprehension” of evidence or submissions, or of law or fact, on the part of the judge in the earlier decision which is said to be such that the orders were made “against good faith’. The test for apprehended bias is concerned with prejudice and partiality, not an individual litigant’s expectations or predictions as to the outcome of a case: Chu v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 314 at 340 (Carr and Sundberg JJ).

12. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39:

… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

13. Our previous involvement in Mr Mohareb’s application for leave to appeal is not a sufficient reason for recusing ourselves from hearing the motion. We have each separately concluded that we have a duty not to recuse ourselves and decline to do so.

14. One further matter should be mentioned. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419, three members of the High Court held that an application that a member of an intermediate appellate bench should disqualify himself or herself should not be solely determined by that member if he or she declined to do so: Gordon J at [94]-[105], Edelman J at [131]-[133], Steward J at [193]. We have set out above our reasons for declining to recuse ourselves individually. Further, each member of the Court agrees that the disqualification application relating to the other member of the Court should be dismissed for the same reasons.

Whether the motion should be dealt with in open court

15. There is no basis for the oral hearing sought by Mr Mohareb. The parties have had a full opportunity to file written submissions, including submissions in reply in the case of Mr Mohareb. Having regard to the statutory command in s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the “just, quick and cheap resolution of the real issues in the proceedings”, the appropriate course is for the motion to be dealt with on the papers. We do not consider that any assistance would be gained by the additional expense of an oral hearing.

Disposition of motion

16. The motion refers to UCPR, rr 36.15, 36.16 and/or 36.17. UCPR, r 36.15(1) provides:

36.15 General power to set aside judgment or order

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

…

17. UCPR, r 36.16, relevantly provides:

36.16 Further power to set aside or vary judgment or order

(1)   The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

…

(3A)   If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

…

18. UCPR, r 36.17 is the “slip” rule. It has no present application and Mr Mohareb did not suggest otherwise.

19. Mr Mohareb says that the orders made by the Court on 4 December 2023 were (i) made against good faith, (ii) affected by “a disregard, a misrepresentation and/or a deliberate misapprehension of … parties’ evidence or submissions”, and (iii) involved a failure to afford a party a proper opportunity to be heard. The first submission invokes the Court’s power under UCPR, r 36.15(1). The second and third submissions invoke the Court’s power under UCPR, r 36.16(3A).

“Against good faith”

20. Mr Mohareb’s assertion that the judgment of this Court refusing leave to appeal was contrary to “good faith” is misconceived. The phrase “against good faith” in r 36.15(1) is concerned with misconduct or dishonourable conduct of the person who procured the judgment, which it is suggested undermines the authority of that judgment: Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 at [53], [60] (Bryson JA, Hodgson and McColl JJA agreeing). No complaint is made by Mr Mohareb impeaching the intention or behaviour of the first or second respondent in opposing the application for leave to appeal and we reject that allegation if it is made.

Misapprehension of the parties’ evidence or submissions

21. It is only in limited circumstances that the Court will act under r 36.16(3A) to vary an earlier judgment: Mohareb v Kelso (No 4) [2021] NSWCA 336 at [3]; State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]-[20] (Mitchelmore JA, Stern JA, and Basten AJA).

22. As explained in Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 at [7] (Payne and Brereton JJA):

The power to re-open on such an application is subject to the significant limitation imposed by the public interest in maintaining the finality of litigation, which requires great caution in its exercise of the power, especially where what is sought would have the practical effect of re-opening the proceedings to enable a significant rehearing. It is to be exercised only where the existing judgment or order is shown to be affected by some relevant irregularity, or by a misapprehension of law or fact, such as a failure to afford a party a proper opportunity to be heard, or that the court had misapprehended a party’s evidence or submissions. And while the scope of any re-opening will depend on the nature of the error or misapprehension, generally the power ought not be exercised to permit a general re-opening of the case. (Citations omitted)

23. Whilst the jurisdiction under UCPR, r 36.16(3A) may be exercised where the Court has apparently proceeded under a misapprehension, “the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect”: Hollingsworth at [20], citing Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

24. There is no need to summarise Mr Mohareb’s submissions on the motion in any detail. He is dissatisfied with the Court’s reasoning and the result refusing leave to appeal from the interlocutory decision of Campbell J. He says that the Court disregarded, misrepresented, or misapprehended his evidence or submissions on the leave application. We do not agree. In our view, Mr Mohareb’s complaints do not engage the limited power of this Court to reopen its earlier judgment. But if there is any substance in this complaint it can be raised on an application to the High Court for special leave to appeal.

25. There are however two aspects of Mr Mohareb’s submissions that call for comment.

26. It is said that the finding of this Court at [14] that there is no arguable error, disregarded and/or deliberately misapprehended the applicant’s submission by reference to NSW Bar Association v Muirhead (1988) 14 NSWLR 173, specifically the remarks of Mahoney JA (who was in dissent in the result) at 200D that “[t]here are elements of convenience in the joinder of the contempt and injunction proceedings”. The reliance upon this statement which was not raised on the leave application is misplaced. It ignores the earlier conclusion by Mahoney JA at 199F: “In my opinion, the joinder of the contempt and the injunction proceeding is not proper and should not be permitted”.

27. It is said that the “special rule” referred to in Muirhead it is not intended to be a permission to depart from, infringe, disregard or completely do away with the existence of s 63 of the Supreme Court Act 1970 (NSW) which exercises the fundamental principle of avoiding “multiplicity of legal proceedings”. Again, this submission is misplaced. It ignores the point made in [15] of this Court’s reasons that Kirby P said at 183F in Muirhead, notwithstanding the terms of s 63 of the Supreme Court Act which emphasises the fundamental principle of avoiding “multiplicity of legal proceedings”, a “special rule” applies to proceedings which are criminal in character. That observation applies to the criminal contempt proceedings brought by Mr Mohareb in the Supreme Court.

Procedural fairness

28. The transcript of the hearing on 1 December 2023 makes plain that Mr Mohareb was given ample opportunity to develop and elaborate his arguments consistent with the usual time restrictions on oral submissions on leave applications. Those time restrictions were explained to Mr Mohareb by the presiding judge at the commencement of the hearing. It is apparent from the transcript that Mr Mohareb said all that he wished to say in-chief and stopped when he wished to, and not because he had been required to stop. Mr Mohareb chose to be brief in his reply; he was not required to stop. The suggestion that Mr Mohareb was denied a proper hearing of his application for leave is unfounded.

29. We conclude that no basis has been shown to set aside the judgment of this Court given on 4 December 2023.

Other matters

30. The first respondent (the State of New South Wales) raised the possibility of the Court making an order of the type referred to in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. The second respondent (the Council) went so far as to suggest that such an order should be made. In his reply submissions (pars [8] and [18]), Mr Mohareb “strongly encouraged” and “invited” both the State of New South Wales and the Council to file and serve a notice of motion seeking such relief. No such motion has been filed by either respondent.

31. In the absence of a formal application by either the State of New South Wales or the Council, the Court does not propose to make a Teoh order on its own motion.

Conclusion and Orders

32. Mr Mohareb has not established that there is any basis to set aside the orders made by this Court on 4 December 2023. His motion will be dismissed.

33. As to costs of the motion, there is no reason why costs should not follow the event: UCPR, r 42.1.

34. Accordingly, the Court orders:

1. Dismiss the applicant’s notice of motion filed 6 December 2023.

2. The applicant to pay the first respondent’s and the second respondent’s costs of the motion.

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Decision last updated: 28 March 2024