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Palmer v Mohareb

Palmer v Mohareb

Case [2019] NSWSC 975 7 August 2019

Vexatious Proceedings

Perjury

Jurisdiction

Standing

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Palmer v Mohareb [2019] NSWSC 975
Hearing dates: 22-23 July 2019
Date of orders: 07 August 2019
Decision date: 07 August 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any proceeding against the plaintiff, Matthew Palmer, in New South Wales.
(2) The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any new proceeding against any person in New South Wales, this order not to affect the filing of any interlocutory process in proceedings that have been commenced at the date of this order or any appeal or application for leave appeal from a decision in any such proceeding.
(3) The defendant’s amended notice of motion filed 12 April 2019 is dismissed.

Catchwords:
CIVIL PROCEDURE – parties – vexatious litigants – where application brought by private individual under s 8(4)(d) Vexatious Proceedings Act 2008 (NSW) – whether proceedings in question vexatious within s 6 – where prior application regarding same litigant pursued on narrow grounds – protective jurisdiction conferred by Act – court not confined by applying party’s particulars of vexatiousness – numerous groundless and repetitive applications – proceedings “frequently instituted or conducted” – vexatious proceedings order made

CRIME – public justice offences – perjury – application by private party to prosecute plaintiff for perjury pursuant to Crimes Act 1900 (NSW), s 338(1)(c) – where party proposed to be prosecuted was opposing party in civil proceedings – discretionary considerations
WORDS AND PHRASES – “frequently instituted or conducted” per s 8(1)(a) Vexatious Proceedings Act 2008 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Defamation Act 2005 (NSW)
District Court Act 1973 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney-General v Butterworth [1962] 3 All ER 326
Attorney-General v Leveller Magazine Ltd [1979] AC 440
Attorney-General v Times Newspapers Ltd [1974] AC 273
Attorney General for the State of New South Wales v
Mohareb [2016] NSWSC 1823
Bleyer v Google Inc [2014] NSWSC 897
Ex parte Bread Manufacturers Ltd v Truth and Sportsman Ltd (1937) 37 SR (NSW) 242
Gregory v Phillip Morris Ltd (1987) 74 ALR 300
Harkianakis v Skalkos (1997) 42 NSWLR 22
Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245; [1981] HCA 35
Matthew Palmer v Nader Nabil Sedra Mohareb [2017] FCA 1760
Mohareb v Palmer (No 2) [2015] NSWDC 141
Mohareb v Palmer [2015] NSWCA 369
Mohareb v Palmer (No. 3) [2016] NSWDC 38
Mohareb v Palmer [2016] NSWCA 378
Mohareb v Palmer (No. 4) [2017] NSWDC 127
Mohareb v Palmer [2017] NSWCA 281
Mohareb v Palmer [2017] NSWSC 1491
Mohareb v Palmer (No 2) [2018] NSWSC 400
Mohareb v Palmer [2018] NSWCA 220
Mohareb v Palmer [2018] HCASL 18
Moss v McIlveen [2011] NSWCA 77
Neil v Nott (1994) 68 ALJR 509
Potier v Attorney General for the State of New…

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 Palmer v Mohareb

Details

AGLC: Palmer v Mohareb [2019] NSWSC 975
Case: [2019] NSWSC 975
Decision Date: 07 August 2019

CaseChat Overview and Summary

In the matter of Palmer v Mohareb, the plaintiff, Palmer, sought an order under the Vexatious Proceedings Act 2008 (NSW) that the defendant, Mohareb, be declared a vexatious litigant. The proceedings involved a series of legal actions initiated by Mohareb, which Palmer claimed were groundless and repetitive. The case was heard in the Supreme Court of New South Wales. Additionally, Palmer applied for an order under the Crimes Act 1900 (NSW) to prosecute Mohareb for perjury in relation to the same litigation.

The court was required to determine whether the proceedings initiated by Mohareb were vexatious under section 6 of the Vexatious Proceedings Act 2008 (NSW). The court also needed to consider the criteria for making a vexatious litigant declaration and the appropriate discretionary considerations in granting a prosecution order for perjury. The court was mindful of the Act's protective jurisdiction, which allowed it to assess the vexatiousness of the proceedings beyond the particulars provided by the applicant.

The Supreme Court found that the proceedings were vexatious, as they were frequently instituted or conducted without any reasonable prospect of success. The court noted the numerous groundless and repetitive applications made by Mohareb. The court exercised its discretion to declare Mohareb a vexatious litigant, considering the cumulative effect of the litigation rather than being confined to the particulars provided by Palmer. In relation to the perjury application, the court considered the relevant discretionary factors, including the importance of deterring such behaviour in the interests of public justice.

The court made an order declaring Mohareb a vexatious litigant under section 8(4)(d) of the Vexatious Proceedings Act 2008 (NSW). Additionally, the court declined to make an order for the prosecution of Mohareb for perjury, balancing the discretionary considerations with the need to maintain the integrity of the judicial process.

Orders