Mohareb v State of New South Wales (No 2)

Mohareb applied to the Court of Appeal of New South Wales to set aside an earlier order that refused him leave to appeal. The application was brought under rules 36.15, 36.16, and 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant contended that the orders sought to be set aside were made against good faith, alleging misconduct or dishonourable conduct by the respondents, and that the Court had misapprehended his evidence or submissions.

The Court was required to determine whether the applicant had established a basis for setting aside the previous judgment. This involved considering whether the alleged misconduct or misapprehension of evidence and submissions were sufficient grounds to vitiate the earlier decision. Additionally, the Court had to address the applicant's request for the motion to be heard by a differently constituted bench, which raised the issue of whether the participation of the judges in the earlier decision refusing leave to appeal could ground a reasonable apprehension of bias, and consequently, whether a recusal application should be granted.

Gleeson and Stern JJA dismissed the applicant's notice of motion. The Court found no basis to conclude that the orders were made against good faith, nor that there was any misconduct or dishonourable conduct by the respondents. Furthermore, the Court determined that it had not misapprehended the applicant's evidence or submissions. The Court also refused the recusal application, holding that the previous adverse decision of the bench did not, in itself, ground a reasonable apprehension of bias.

Consequently, the Court ordered that the applicant's notice of motion filed on 6 December 2023 be dismissed, and that the applicant pay the costs of both the first and second respondents in relation to the motion.