The Attorney General for the State of New South Wales v Mohareb

[2016] NSWSC 1823

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	The Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823
Hearing dates:	14 October 2016 and 16 November 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Attorney’s application dismissed with an order for costs in defendant’s favour.
Catchwords:	PROCEDURE - Vexatious Proceedings Act 2008 (NSW) – orders sought opposed – proper construction of s 6 of the Vexatious Proceedings Act 2008 – whether judgements admissible under s 91 of Evidence Act 1995 – whether the Attorney General met the onus of establishing that Mr Mohareb has frequently instituted or conducted vexatious proceedings – not established –application dismissed – costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Attorney General v Tareq Altaranesi [2013] NSWSC 63 Attorney General v Chan [2011] NSWSC 1315 Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433 Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 Attorney General of New South Wales v Martin [2015] NSWSC 1372 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26 Gardner v R (2003) 39 MVR 308; [2003] NSWCCA 199) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 Kelly v R (2004) 218 CLR 216; [2004] HCA 12 Kable v State of New South Wales [2012] NSWCA 243 Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51; [1996] HCA 24 Martin v NSW Department of Industry and Investment [2009] NSWLEC 1447 Martin v NSW Minster for Mineral and Forest Resources [2010] NSWLEC 131 Martin v State of NSW (No 9) [2011 NSWCA 286 Mohareb v Jankulovski [2013] NSWCA 462 Mohareb v Jankulovski [2012] NSWSC 487 Mohareb v Jankulovski [2013] NSWSC 850 Mohareb v Jankulovski & Anor [2013] NSWSC 1300 Mohareb v Jankulovski [2014] NSWSC 451 Mohareb v Jankulovski [2014] NSWSC 745 Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2009] QSC 324 Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2010] QSC 126 Mohareb v Palmer [2015] NSWDC 134 Mohareb v Palmer [2015] NSWCA 369 Mohareb v Palmer (No 2) [2015] NSWDC 141 Mohareb v Palmer (No 3) [2016] NSWDC 38 Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 Pascoe v Liprini [2011] NSWSC 1484 Potier v Attorney General NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 Siteberg v Maples [2010] NSWSC 1344 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 Viavattene v Attorney General (NSW) [2015] NSWCA 44 YZ Finance Co Pty Ltd (1964) 109 CLR 395; [1964] ALR 667
Category:	Principal judgment
Parties:	The Attorney General for the State of New South Wales (Plaintiff) Nader Mohareb (Defendant)
Representation:	Counsel: M J Emmett (Plaintiff)   Solicitors: Crown Solicitor’s Office (Plaintiff) Mr N Mohareb (in person) (Defendant)
File Number(s):	2016/163183
Publication restriction:	None

Judgment

1. When the proceedings were commenced in May 2016, the Attorney General sought orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) against Mr Mohareb, staying proceedings which he had already commenced and prohibiting him from commencing other proceedings in the State, without the Court’s leave. The Attorney had given extensive particulars of the proceedings relied on to establish the case against Mr Mohareb.

2. At the commencement of the hearing in October 2016, however, the Attorney announced that narrower orders would be pursued, given certain relevant developments which, it was submitted, had demonstrated that Mr Mohareb’s conduct was less serious than had been understood, when the proceedings were commenced. In large part that resulted from an appreciation of what had transpired in proceedings Mr Mohareb had brought in the District Court against a Mr Palmer and a Mr Kelso, for what was accepted to have been defamatory publications and other alleged conduct.

3. In the result various of the particulars earlier provided by the Attorney were not relied on; some allegations were not pressed; and it was accepted that other allegations on which reliance was still placed, to establish a jurisdictional basis for the orders then pressed, should be accorded much less weight. Still, the Attorney contended that while Mr Mohareb had demonstrated a degree of insight into his earlier litigious conduct, the Court would remain concerned about his pursuit of a Mr Palmer, as well as about his endeavours to join multiple additional defendants to his current proceedings in the District Court against a Mr Alexander Kelso.

4. After an adjournment of the hearing, there were further developments, including leave granted to Mr Mohareb to appeal a judgment given by Gibson J in the Palmer litigation, which resulted in the Attorney further changing the case pressed, against Mr Mohareb. On resumption even further particulars were no longer pressed and the orders sought were further narrowed to take account of the possible result of the appeal, which was due to be heard on 29 November 2016.

5. The Attorney’s case in final written submissions was that Mr Mohareb’s conduct revealed that while he had gained some insight, he drew unreasonable conclusions about the way in which opposing parties and legal representatives conduct themselves, with the result that the Court would have a legitimate concern that he may take a similar approach in proceedings on foot, as well as in future proceedings. The Attorney did not accuse Mr Mohareb of deliberately making allegations he did not believe to be true, but argued that his lack of insight and his inclination to conclude that his opponents and members of the Bench were acting in bad faith, or otherwise improperly, were important considerations in determining whether orders should be made against him under the Act.

6. The orders finally pressed were:

“a.   an order staying Mr Mohareb’s notice of motion filed in the District Court on 12 May 2016 in NSWDC proceedings no 2014/243522 (Mohareb v Palmer) seeking orders under section 203 of the District Court Act 1973 (NSW) unless and until leave is granted pursuant to the VP Act;

b.   an order prohibiting Mr Mohareb from bringing any further interlocutory application in NSWDC proceedings no 2014/243522 (Mohareb v Palmer) unless leave is granted pursuant to the VP Act, save that the order does not apply to any application remitted to the District Court by the Court of Appeal in NSWCA proceedings no 2016/97914 (Mohareb v Palmer);

c.   an order prohibiting Mr Mohareb from seeking to join any new parties to NSWDC proceedings no 2015/201139 (Mohareb v Alexander Kelso) or NSWDC proceedings no 2015/359339 (Mohareb v Booth) unless leave is granted pursuant to the VP Act;

d.   an order prohibiting Mr Mohareb from commencing new proceedings, or seeking to join any new parties to existing proceedings, in relation to the alleged defamatory conduct by affixing a poster of Mr Mohareb to noticeboards on Scotland Island on or about 21 July 2014, unless leave is granted pursuant to the VP Act.”

7. The orders sought were opposed by Mr Mohareb, who contended that the evidence on which the Attorney relied could not establish the statutory threshold for the making of any orders against him under the Act. For reasons which I will explain, his case must succeed.

8. I am satisfied that while there have no doubt been difficulties of various kinds which have arisen in the proceedings on which the Attorney’s case rested, particularly when Mr Mohareb was unrepresented, the Court has no power, in the circumstances revealed by the evidence, to make any orders against him under the Vexatious Proceedings Act.

9. Accordingly, these proceedings must be dismissed with an order for costs in his favour.

Issues

10. In issue between the parties was:

1. the proper construction of s 6 of the Act;

2. whether the Attorney General has met the onus of establishing that Mr Mohareb “has frequently instituted or conducted vexatious proceedings (as defined in s 6) in Australia” (s 8(1)(a));

3. if it is concluded that the statutory threshold has been met, whether any order should be made against Mr Mohareb and if so, in what terms.

The Attorney General’s case

11. The litigation on which the Attorney’s case was finally advanced was:

1. Queensland proceedings brought in relation to Mr Mohareb’s former employment, in which his various pleadings were struck out and he was finally refused leave to replead (see Mohareb v Lambert and Rehbein [2009] QSC 324 and [2010] QSC 126);

2. Proceedings brought in this Court against Mr and Mrs Jankulovski for defamation, in which Mr Mohareb was unrepresented, which, before settlement, were dealt with by:

1. Harrison J in Mohareb v Jankulovski [2012] NSWSC 487, where Mr Mohareb’s amended statement of claim was struck out and he was given leave to file a further amended statement of claim;

2. Harrison AsJ in Mohareb v Jankulovski [2013] NSWSC 850, where Mr Mohareb’s motion seeking an order for specific performance of a claimed settlement agreement was struck out; his further amended statement of claim was struck out; he was given leave to replead part of his claim; and he was ordered to provide $5,000 for security for costs and the proceedings were stayed until the security was given;

3. The Court of Appeal in Mohareb v Jankulovski [2013] NSWCA 462, in which Mr Mohareb was refused leave to appeal Harrison AsJ’s judgment;

4. Barr AJ in Mohareb v Jankulovski & Anor [2013] NSWSC 1300, in which a summons by which he sought leave to appeal a costs assessment was dismissed;

5. Harrison J in Mohareb v Jankulovski [2014] NSWSC 451 where the defendants sought to have the proceedings struck out for want of prosecution, but they were ordered to file their defence to Mr Mohareb’s second further amended statement of claim; and

6. Harrison J in Mohareb v Jankulovski [2014] NSWSC 745 in which Mr Mohareb accepted he had to return two dongles to the defendants, which had been referred to in the proceedings before Harrison AsJ by Gibson DCJ

3. Proceedings brought in the District Court against Mr Palmer for defamation and assault, in which Mr Mohareb has on occasions been represented, which have been dealt with by:

1. Gibson DCJ in Mohareb v Palmer [2015] NSWDC 134, where an application for summary dismissal of Mr Mohareb’s case was refused, given the difficulties for an unrepresented litigant in properly pleading a claim for defamation, which was not accepted as being unmeritorious on its face;

2. Gibson DCJ in Mohareb v Palmer (No 2) [2015] NSWDC 141, where the proceedings were dismissed following a settlement and Mr Mohareb was refused leave under s 338(1)(c) of the Crimes Act1900 (NSW) to prosecute Mr Palmer for perjury;

3. The Court of Appeal in Mohareb v Palmer [2015] NSWCA 369, in which leave to appeal Gibson DCJ’s judgment in Mohareb v Palmer (No 2) was refused, because in the District Court Mr Mohareb had not clearly identified the perjury charge he had sought leave to pursue against Mr Palmer;

4. Gibson DCJ in Mohareb v Palmer (No 3) [2016] NSWDC 38 in which a further application for leave to prosecute Mr Palmer for perjury was refused;

5. The Court of Appeal, leave to appeal from Gibbs DCJ’s judgment in Mohareb v Palmer (No 3), being granted and the appeal having been heard on 29 November; and

6. An application has also been made by Mr Mohareb to have Mr Palmer referred to this Court to be dealt with for alleged contempt, which has not yet been dealt with.

4. Proceedings brought in the District Court against John Kelso, Saratoga Marine Pty Ltd and Saratoga Integration Pty Ltd, trading as Pink Water Taxis, Mr Mohareb claiming to have been harassed, intimidated, defamed and bullied and his property damaged and vandalised, in which a default judgment Mr Mohareb had obtained was set aside and where he eventually accepted that the proceedings against Mr Kelso had been brought by mistake, with the result that the named defendant is now Alexander Kelso. They were dealt with by Gibson DCJ in Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208, when amongst other things leave to join other defendants was refused.

Mr Mohareb’s case

12. Mr Mohareb’s case was that in the various proceedings on which the Attorney relied, he had exercised his rights as he was entitled to do, although he accepted that he had encountered difficulties, particularly when he was unrepresented at various times. Nevertheless, he contended that he had also acted in accordance with his obligations, particularly by seeking to settle litigation in which he had been involved. He had also accepted various decisions, which made been made against him, even when he disagreed with the result.

13. Accordingly, on his case, it was not open to conclude that the proceedings he had pursued and applications he had made were vexatious as defined in the Act, as the Attorney contended.

14. Mr Mohareb also contended that it was relevant that Mr Palmer had perjured himself in giving evidence in the District Court; that later he had been attacked by Mr Palmer, that attack having involved a contempt of Court; and that it was relevant that in some of the proceedings on which the Attorney relied he had been legally represented, including in parts of the Palmer proceedings. The fact that in other proceedings he had not been legally represented and so had not been able to conduct his litigation as efficiently as it might have been, had he been represented, was also submitted to be relevant to the question of whether it was open to conclude that he had pursued vexatious proceedings or that he had frequently pursued such proceedings.

15. To establish his case Mr Mohareb relied on affidavits to which were attached numerous documents, including transcript of proceedings, as well as written and oral submissions. He was also cross-examined.

Whether judgements admissible under s 91 of the Evidence Act

16. The Attorney also raised a question as to the admissibility of the judgments sought to be relied on to establish the case against Mr Mohareb, even though he had not objected to their tender. That was properly raised, given that Mr Mohareb appeared unrepresented on this application. The issue arose under s 91 of the Evidence Act1995 (NSW), which provides:

“91    Exclusion of evidence of judgments and convictions

(1)    Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2)    Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.”

17. In Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433, I held at [72] that s 91 of the Evidence Act did not preclude a judgment being tendered as evidence in other proceedings, other than as proof of the existence of facts found in the proceedings in which the judgment was given.

18. In Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596, I said the Attorney was not entitled to rely on the judgments to which objection was taken (at [66] – [67]):

“66 … to prove the existence of a fact in issue in the proceedings to which they related, as was accepted at the hearing. They can, however, be relied on to establish in these proceedings that the earlier proceedings were vexatious, as defined in s 6 of the Vexatious Proceedings Act, that not having been a matter in issue in any of the earlier proceedings.

67   As discussed by Adamson J in Chan at [47], where the tender of judgments in other proceedings in which the defendant had been involved was also sought to be relied on to establish that the defendant had been involved in vexatious proceedings:

"47 ... [t]he judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant's conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendant's objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose."

19. The Attorney drew attention to different views reached by Simpson J in Attorney General of New South Wales v Martin [2015] NSWSC 1372, as to the operation of s 91. There her Honour concluded at [29] that in the case of each judgment sought to be relied on, “a preliminary question will be whether the judgment is admissible having regard to the provisions of s 91 of the Evidence Act”.

20. Her Honour concluded that the decision of a Commissioner of the Land and Environment Court in Martin v NSW Department of Industry and Investment [2009] NSWLEC 1447 was not admissible. There, the Commissioner had to deal with, amongst other things, an application to have the proceedings struck out under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The Commissioner concluded that the proceedings should be dismissed on the grounds that they would be vexatious and frivolous if they were to proceed further; there was no reasonable cause of action; and they were an abuse of process.

21. Simpson J’s view turned on the conclusion that the Commissioner’s findings as to those matters were “findings of fact”, which were “the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(c)” (at [38]). Her Honour thus concluded (at [40] – [41]) that:

“40 Since the Attorney General may not rely upon those findings of fact by Commissioner Dixon to establish the facts she seeks to establish for the purposes of s 6 of the Vexatious Proceedings Act, it is appropriate, if the evidence permits, that I make that judgment myself, without recourse to the findings of fact of Commissioner Dixon: see Teoh (No 8) at [51]; Chan at [39]. In this instance, that is not possible. All that is before me is the Summons and the proposed Amended Summons; there was, as indicated above, affidavit and documentary evidence before Commissioner Dixon which appears to have been material to her determination. Although both the Summons and the proposed Amended Summons contain some prayers for relief that are, perhaps, questionable, I am not in any position to determine that they come within any of the paragraphs of s 6. That conclusion could only be reached by having recourse to the judgment of Commissioner Dixon.

41    Absent reliance on the findings of fact by Commissioner Dixon, I cannot find that the principal proceedings were vexatious.”

22. Those conclusions have to be considered in light of the observations in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125, as to which Simpson J observed at [91], that the Court of Appeal had not had necessary regard to the requirements of s 91 of the Evidence Act, to which no reference had been made in the Court’s judgment. There it was said by the Court of Appeal at [50] – [54]:

“50 Secondly, a number of decisions have held that it is necessary for the Court considering an application under the VP Act to form its own judgment about each proceeding said to satisfy the definition of ‘vexatious proceedings’, but that in doing so the Court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings: Attorney General of New South Wales v Croker [2010] NSWSC 942 at [125] (Fullerton J) (following the views expressed by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 at [5] in relation to s 84 of the [Supreme Court] Act [1970]); Attorney General v Chan [2011] NSWSC 1315 at [39] (Adamson J) (and other cases cited there); Attorney General of New South Wales v Martin [2013] NSWSC 442 at [9] (Hidden J) (citing Attorney General v Chan at [39]).

51 Section 8(1)(a) of the VP Act requires the authorised court to be satisfied that the person against whom an order is sought has frequently instituted or conducted vexatious proceedings in Australia. To be so satisfied, the court must identify the vexatious proceedings that have been instituted or conducted by that person and make a finding as to whether he or she has instituted or conducted such proceedings ‘frequently’. A necessary element in this process is making a finding as to whether each of the proceedings relied on (or a sufficient number of them) satisfies the definition of ‘vexatious proceedings’ in s 6 of the VP Act.

52 Section 6 does not specify the matters that the court dealing with the application under the VP Act should take into account in determining whether particular proceedings were, for example, an abuse of the process of the court (s 6(a)) or instituted without reasonable ground (s 6(c)). There is nothing in the language of s 6 to indicate that a finding by the court in the earlier proceedings that they were an abuse of process or instituted without reasonable grounds is determinative on an application under the VP Act. Equally, there is nothing to indicate that a finding made or view expressed by the court in the earlier proceedings is to carry no weight on an application under the VP Act.

53    Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. It would be an odd result if such a determination simply has to be ignored by a court hearing an application under the VP Act. The oddity of the result is reinforced by the likelihood that an application under the VP Act would be prolonged if the findings made and views expressed in the earlier proceedings could not be taken into account. Indeed there would be a real risk that the court would be burdened with litigation of issues of the very kind that the legislation is designed to avoid.

54 On the other hand, the seriousness of the consequences of making a vexatious proceedings order supports a construction of ss 6 and 8 of the VP Act that leaves it open to the court hearing an application for a vexatious proceedings order to depart from the findings made in the earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure.”

23. In Martin, Simpson J did receive other judgments in evidence, because they did not contain findings of any fact in issue in the vexatious proceedings which she had to deal with and were relevant to what was in issue on the application under the Vexatious Proceedings Act.

24. For example, a judgment of Biscoe J in Martin v NSW Minster for Mineral and Forest Resources [2010] NSWLEC 131 was admitted. There his Honour had to deal with an argument that the decision which was challenged in the proceedings had been made by a person who lacked appropriate authority. Her Honour noted that the Court of Appeal had concluded that Biscoe J was clearly correct (see Martin v State of NSW (No 9) [2011 NSWCA 286).

25. I find myself in disagreement with Simpson J's approach to the construction of s 91.

26. The term “finding of fact” is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.

27. As discussed in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 395 whether “facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law”. So, too, I consider, are questions which arise under Rule 13.4 of the UCPR, as to whether particular proceedings either generally, or in relation to any particular claim, are “frivolous or vexatious”, or disclose “no reasonable cause of action”, or involve “an abuse of the process of the court”. If not questions of law they are at least mixed questions of law and fact.

28. The judgment which her Honour refused to admit was one where in issue was the question of whether proceedings brought in the Land and Environment Court were vexatious and frivolous, had no reasonable cause of action and were an abuse of process. The conclusion which the Commissioner came to, rested on facts found, but the decision was not sought to be tendered in the vexatious proceedings in order to prove the existence of facts that were in issue in the Land and Environment Court proceedings.

29. Rather, the decision was tendered to prove that Mr Martin was a party to the proceedings; that they had been dismissed; that this had been the result of the conclusions reached by the Commissioner, that the proceedings would be vexatious and frivolous if they were to proceed further; that there was no reasonable cause of action; and that they involved an abuse of process.

30. As found in Teoh, decisions of that kind are admissible in proceedings brought under the Vexatious Proceedings Act. Views expressed in such decisions are not binding, but they are relevant to what arises to be decided in proceedings under that Act, not because they are tendered in order to prove the existence of a fact that was in issue in the earlier proceedings, but rather, to establish the fact that the earlier proceedings existed, that the defendant was a party to them, how they were resolved and in some cases, the views the presiding judge expressed on matters which also fall within the definition of “vexatious proceedings”. That term is defined in s 6 of the Vexatious Proceedings Act to include:

“(a)    proceedings that are an abuse of the process of a court or tribunal, and

(b)    proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)    proceedings instituted or pursued without reasonable ground, and

(d)    proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

31. All of those matters also involve questions of law. They must certainly be decided on facts found, but conclusions reached in the earlier proceedings on those questions are not themselves “findings of fact”. Nowadays, given obligations such as those imposed by s 56 of the Civil Procedure Act 2005 (NSW), conclusions that particular proceedings, or an aspect of them, involve an abuse of process; were instituted or conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or were instituted or pursued without reasonable ground, are not infrequently reached in judgments given both at interlocutory and final stages of the proceedings.

32. That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.

33. That approach accords, I consider, with the observations of Allsop P in Kable v State of New South Wales (2012) 268 FLR 1; [2012] NSWCA 243 at [3] - [4], where his Honour observed as to the tender of the judgment in Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; 91996) 189 CLR 51:

“4 These are not expressions of matters res inter alios acta. These are not findings of fact sought to be utilised impermissibly in another proceeding contrary to the Evidence Act 1995 (NSW), s 91. These are the conclusions of the majority of the High Court justices essential to the reasoning as to the unconstitutionality of the statute in Mr Kable's suit against the Director. The State of New South Wales appeared in Kable by and through the Solicitor General. The reasoning stands as determinative of the character of the "orders" of this Court and of the character of the functions, processes and authority exercised or purported to be exercised by this Court in 1995.”

34. Conclusions reached in earlier proceedings as to matters which fall into the s 6 definition of “vexatious proceedings” are not findings of fact which are impermissible to rely on in later proceedings brought under the Vexatious Proceedings Act, given the provisions of s 91 of the Evidence Act.

The proper construction of s 6 of the Vexatious Proceedings Act

35. Section 8(1) provides that the Court may make a “vexatious proceedings” order in relation to a person, if satisfied that:

“(a)    the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b)    the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.”

36. The term “vexatious proceedings” is defined in s 6, quoted above. “Proceedings” is defined in s 4 to include:

“(a)    any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(b)    any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and

(c)    any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

37. “Instituting” proceedings is dealt with in s 5, which provides:

“(1)    In this Act, institute, in relation to proceedings, includes:

(a)    for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and

(b)    for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and

(c)    for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and

(d)    for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

(2)    A reference in this Act to instituting proceedings includes a reference to instituting:

(a)    proceedings generally, and

(b)    proceedings in relation to a particular matter, and

(c)    proceedings against or in relation to a particular person, and

(d)    proceedings in a particular court or tribunal.”

38. The Attorney’s case was that some of the paragraphs of the definition in s 6 were concerned with objective matters, paragraph 6(c) for example (see Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [19]) and some subjective, paragraph (b) for instance (see Attorney General v Chan [2011] NSWSC 1315 at [33]; Pascoe v Liprini [2011] NSWSC 1484; Attorney-General v Tareq Altaranesi at [20]).

39. In Viavattene v Attorney General (NSW) [2015] NSWCA 44 Leeming JA, with whom Beazley P and Basten JA agreed, concluded that the appeal should be upheld and limited orders under the Vexatious Proceedings Act should be made against Mr Viavattene, rather than the “blanket orders” which had been made at first instance. Both Basten JA and Beazley P there also made observations as to the proper construction of s6, but all three members of the Court considered that it was not appropriate in that case to determine its proper construction.

40. That has arisen for determination in this case.

41. What is in issue is whether Basten JA’s approach to the construction of the section in Viavattene was correct and should be followed, with the Attorney contending that it was not. Basten JA observed as to the construction of s 6 (at [14] – [19]):

“14 Although the definition is not expressed to be exclusive, for reasons considered under the next heading, one might expect it to be rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6. Secondly, as has been remarked in a number of cases, the separate paragraphs are not to be construed as independent and self-contained categories. For example, most proceeding which would fall within pars (b)-(d) would constitute an abuse of process for the purposes of par (a). If for no other reason, one would be cautious before identifying significant differences in the approach to different paragraphs based on minor changes in wording from one paragraph to another.

15    Unfortunately, such an approach is revealed in some of the authorities. Thus in Pascoe v Liprini [2011] NSWSC 1484 the Court stated at [10]:

“These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes a subjective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the Court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not.”

16    One difficulty with this passage is that the most substantial difference between pars (b) and (d) is that the former deals with the institution of proceedings and the latter with their conduct. The fact that par (d) is not concerned with subjective intention (if that be the case) will not, in most cases, have the relieving effect identified.

17    More importantly, it is not easy to see why a concern with subjective intention is to be inferred from the words of par (b), but rejected by reference to the words of par (d). There are indeed differences in the language used (other than the operative verb), but those differences are unlikely to be material in the sense identified. First, par (b) speaks of proceedings “instituted to” harass or annoy etc; par (d) speaks of proceedings conducted “in a way so as to” harass, annoy, etc. Secondly, the four identified elements are grouped in two pairs in par (b), but treated as a set in par (d). Why the drafter adopted these variations is unclear, but no change in meaning should be inferred. Thirdly, the final catchall phrase is expressed in par (b) as being “for another wrongful purpose” and in par (d), picking up the continuation of the words “so as to”, continues “achieve another wrongful purpose.” Again, the variation in language is unexplained but immaterial.

18    Once it is recognised that the only significant difference between the two paragraphs is that the former is dealing with the institution of proceedings and the latter their conduct, to treat one as requiring a subjective intention and the other as an objective effect is to impose a distinction which the language does not bear and a purposive approach would not support. The point may be illustrated by the discussion of abuse of process in Williams v Spautz [1992] HCA 34; 174 CLR 509. The judgments in that case are littered with references to proceedings being “instituted and maintained for an improper purpose” (see, eg, p 521 (Mason CJ, Dawson, Toohey and McHugh JJ)). Although it may be necessary to distinguish between a plaintiff’s intention and motives (see, eg, pp 534-535 (Brennan J)), the key is to identify a subjective “purpose” that is “foreign to the nature of the process”: Brennan J at p 533, quoting Isaacs J in Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509 at 522. The words “wrongful purpose” in both pars (b) and (d) include the subjective element of improper purpose. Similarly, the language of “harass” and “annoy” each suggest the possibility of a purpose other than that for which the proceedings are designed, although, again, it may be necessary to distinguish an entirely properly purpose pursued with a malicious motive, from an improper purpose. It is at least arguable that proceedings used for an entirely proper purpose will not be vexatious, whatever the motive of the moving party (or the opposing party).

19    On the other hand, whether pars (b) and (d) would be satisfied by an objectively demonstrated outcome, absent any improper purpose, is less clear. If one takes the words “cause delay or detriment” in isolation, such a construction is open; however, read as part of a composite set of concepts, apparently characterised by the phrase “wrongful purpose”, mere objectively determined effects or consequences may not be sufficient. (A different conclusion would be available with respect to par (c).)”

42. Basten JA did not consider that the approach to the construction of the section in Pascoe vLiprini and in Attorney-General v Tareq Altaranesi at [20] was persuasive. In the latter case, the view taken by Slattery J was:

“[20]    Paragraphs 6(b) and (d) of the Act also represent related categories. They refer to the same underlying conduct "to harass or annoy, cause delay or detriment". Paragraph 6(b) refers to the actor's subjective intentions, whereas sub-paragraph 6(d) does not; rather paragraph 6(d) is concerned with the effect and consequences of action rather than the motive or design for action: Liprini at [10]. Thus, the Court does not have to determine whether or not a defendant has a subjective intention to "harass or annoy, to cause delay or detriment" by proceedings: only that this is the consequence of the defendant's litigious conduct.”

43. Beazley P took a somewhat different view, observing in Viavattene at [3] – [4]:

“3    There are at least two first instance decisions in which para (d) has been construed as not requiring the court to determine whether the defendant in proceedings under the Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”: see Pascoe v Liprini [2011] NSWSC 1484 at [10] per Adamson J; Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] per Slattery J.

4 Basten JA, at [22], has raised a question whether this is a correct construction of s 6(d). In particular, his Honour has indicated that the elements of “harass and annoy” in s 6(d) would appear to require that subjective intent of the defendant to “harass and annoy” be established. I do not consider that this is necessarily the correct construction of s 6(d). However, as his Honour states, if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to “achieve another wrongful purpose” requires an intentional element.”

44. I find myself in disagreement with Basten JA.

45. The function of a definition section such as s 6 is ordinarily to indicate that when particular words or expressions are used in the substantive part of the statute under consideration, they are to be understood in the defined sense as including certain things which, but for the definition, they would not include (see Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 at 63). Such a definition must not be given a narrow, literal meaning, which is then used to negate the evident policy or purpose of a substantive enactment. The proper course is “to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome” (see Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103]).

44. In this case that requires consideration to be given to the purpose of the Vexatious Proceedings Act, identified in Teoh v Hunters Hill Council (No 8) at [56] to be to give the Court the power to make orders "to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”.

45. The power granted by s 8, is to make a “vexatious proceedings” order. That term is defined in s 6, it will be remembered, as including:

“(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)    proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

48. It is relevant to the construction of this definition that it is specified to be an inclusive one. Ordinarily the use of the word “includes” is understood as enlarging the ordinary meaning of the defined words (see Gardner v R (2003) MVR 308; [2003] NSWCCA 199). Where, however, some items in a definition would fall within the ordinary meaning of the defined terms and some would not, then it may be the case that the definition is an exhaustive one (see YZ Finance Co Pty Ltd (1964) 109 CLR 395; [1964] ALR 667 for example).

49. In this case it is not obvious that the term “vexatious proceedings” has a settled ordinary meaning and accordingly, the conclusion that the definition in s 6 is an exhaustive one, does not seem to be available. As discussed in Re Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 at 353 the fact that matters falling within the term can be identified, additional to those listed in a definition, suggests that it is not exhaustive. This is such a case.

50. In Viavattene, Basten JA did not consider the definition to be exhaustive, but he did observe that it would be rare for a court to treat proceedings as “vexatious proceedings”, unless they could fairly be characterised as falling under one of the four descriptions in s 6. His Honour also took the view that there were only “minor changes” in wording in the four paragraphs of the definition, with the result that both the institution of proceedings (paragraph (b)) and their conduct (paragraph (d)), “in order to harass or annoy, to cause delay or detriment, or for another wrongful purpose”, properly construed, are concerned with subjective intention.

51. I do not agree with that conclusion, but even if correct, given that the definition is an inclusive one, it leaves open the possibility that particular proceedings have been conducted in such a way that it is open to conclude that the proceedings were vexatious, even if they were not intentionally conducted so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

52. If, in fact, the proceedings have been conducted with that result, even if that was not subjectively intended, for example, by an unrepresented person with limited understanding who repeatedly files interlocutory proceedings seeking relief which has already been refused, it would thus be open to find that the proceedings were vexatious proceedings, on which orders under s 8 could be made. Such conduct would certainly bring the proceedings within the “repetitious suits” discussed in Teoh.

53. I consider, however, that the better view is that properly construed, s 6(d) is concerned with the result of the conduct of the proceedings, whatever may have been the subjective intention of the person concerned in the conduct which it is alleged brings the proceedings within the statutory definition of “vexatious proceedings”.

54. That conclusion is driven both by the words used in s 6(d) and the differences in the language used in the four paragraphs of the definition. The differences between the words used in paragraphs (b) and (d), reflect the different work that these two parts of the definition have to do.

55. That paragraph (b) is concerned with subjective intention, is apparent from the use of the words “instituted to”. That points to initiation of proceedings with the stated intention. That paragraph (d) is not concerned with intention, but rather with result, is apparent from the use of the words “conducted in a way so as to” achieve the stated result, namely “harass or annoy, cause delay or detriment, or achieve another wrongful purpose”. That result can follow, whether or not any of those “purposes” were subjectively intended to be achieved, for example as the result of a lack of understanding, or misunderstanding.

56. Contrary to the general principle that prima facie all words in a statute have meaning and effect and courts are not at liberty to consider them as superfluous or insignificant (see The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414), if paragraph (d) is construed as also being concerned with subjective intent, rather than with result, the words “in a way so as” used in s 6(d) appear to be otiose. The paragraph could have provided “proceedings conducted to harass or annoy, cause delay or detriment, or achieve another wrongful purpose”, words which would obviously have captured subjective intent, as s 6(b) does. That different words were used, must not be overlooked.

57. That the words ‘‘in a way so as’ where used in paragraph (d) have no meaning, is a conclusion contrary to the approach discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71], that “a court construing a statutory provision must strive to give meaning to every word of the provision”.

58. In the case of s 6, that can readily be done. The conclusion that paragraph (d) is concerned with result and paragraph (b) with intent is neither inconsistent, nor in conflict. Rather, it produces harmony without inconsistency, giving all words used in the definition obvious work to do, consistently with the purpose of the statute. Thereby proceedings may be vexatious, as defined, whether commenced with the intent to “harass or annoy, cause delay or detriment, or achieve another wrongful purpose” , or even if not commenced with that intent, if they are conducted with that result, they will fall within the definition.

59. As the Attorney submitted, in construing the Act, both its beneficial purpose, so far as the community is concerned, as well as its draconian consequences for individuals against whom orders are made under the Act, must be borne in mind. So, too, must the consequences of the competing interpretations. As discussed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297 at 321:

“Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.”

60. In this case, a construction of s 6(d) as capturing the result of the conduct of the proceedings, whether or not that was what was subjectively intended, it seems to me, accords not only with the intention of the legislative scheme, but also with the grammatical sense of the words used.

61. Were that conclusion not correct, as I have explained, I consider nevertheless, given that the definition is an inclusive one, proceedings which are conducted, even unintentionally, so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose, fall within the definition of “vexatious proceedings” in s 6.

62. In the result, I consider that the better view is that Mr Mohareb’s case, that s 6 of the Act must be construed in the way discussed by Basten JA in Viavattene, may not be accepted.

63. It will be necessary, however, to say something further about the construction of s 6(d), to which I will return in the context of the proceedings Mr Mohareb pursued in Queensland, which illustrates the difficulty with the broad operation of s6(d) for which the Attorney contended.

Has Mr Mohareb instituted or conducted “vexatious proceedings”?

64. In determining whether Mr Mohareb has instituted or conducted “vexatious proceedings”, the nature of the proceedings, whether principal or interlocutory, relied on by the Attorney must be considered. Interlocutory applications may be vexatious either because they are made in pursuit of proceedings which themselves are vexatious, or because it is the interlocutory applications, rather than the principal proceedings, which are vexatious. Even then it may not necessarily follow that “vexatious proceedings” have been brought frequently.

65. The particulars on which the Attorney relied were contained in further amended particulars marked MFI 4. The Attorney accepted that a conclusion that particular proceedings were vexatious would be more difficult to reach, where a party was legally represented, as Mr Mohareb was, in some of the proceedings on which the Attorney’s case rested.

66. It was also accepted that consideration had to be given not only to Mr Mohareb’s conduct, but also to that of the other parties to the proceedings.

The Queensland proceedings

67. In this case, Mr Mohareb accepted that his original pleadings were inadequate, but contended, nevertheless, that it could not be concluded that his applications were vexatious, even though his further pleadings were struck out and he was refused leave to replead. That was because on his evidence, even though the Court accepted that he had a claim and he had taken legal advice, that had not resulted in pleadings acceptable to the Court. There is obvious force in his argument.

68. The particular finally pressed by the Attorney in MFI 4 provided:

“1.   in Mohareb v Lambert & Rehbein (Seq) Pty Ltd, filing repeated versions of a statement of claim that are liable to be struck out, as set out in Mohareb v Lambert & Rehbein (Seq) Pty Ltd [2010] QSC 126 at [33]-[36] (tab 2 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act;”

69. The Attorney’s case was finally that repeatedly filing different versions of a statement of claim which were struck out, with the result that indemnity costs were ordered and leave to replead was refused, established that the proceedings were vexatious, given the breadth of the definition in s 6(d).

70. It was accepted, however, that this may also evidence incompetence on the part of those who drafted the pleadings and that it is relevant to consider that it is not only unrepresented parties who have difficulty in properly pleading their claim in accordance with the requirements of the Uniform Civil Procedure Rules. The Attorney thus accepted that little weight would be placed on the first statement of claim which was struck out in this case.

71. Even though Mr Mohareb then did take legal advice, it was submitted, however, that the further amended statements of claim he filed unintentionally caused delay and detriment, bringing the proceedings within s 6(d). That, it was argued, was relevant to the exercise of the discretion, not to whether the conduct fell within the broad terms of s 6(d).

72. I do not agree with that construction of s 6(d).

73. Even in an ordinary case, where there is no suggestion that the proceedings or any application made within them are vexatious, initiation, defence or pursuit of the proceedings or a particular, even on good grounds, may result in other parties considering that thereby they have been harassed or annoyed. Any departure from the requirements of the Rules, no matter how minor, understandable, or unintended, or even as the result of proper pursuit of settlement negotiations, may also result in either delay or other detriment, such as additional costs being incurred by the parties.

74. I consider that is not enough to bring the proceedings within s 6(d).

75. Not every difficulty which a litigant encounters, which results in a hearing date not being allocated as quickly as it otherwise might have been if the difficulty had not arisen, will result in delay or detriment to the other parties to the proceedings of the kind with which s 6(d) is concerned. Even the Attorney accepted, for example, that the Court must be particularly cautious before concluding that proceedings have become vexatious, just because time has passed while leave given to replead was pursued with legal assistance.

76. I consider that it is the use of the phrase “other wrongful purpose” in s 6(d) which sheds light on how this aspect of the definition must be construed, if it is to be given its intended operation in this legislative scheme, consistent with its intended purpose. It is when harassment, annoyance, delay and detriment results from the conduct of the proceedings which on the evidence is established to have been “wrongful”, whether or not that was the intended result, that s 6(d) is engaged.

77. In the result the Attorney’s approach to the construction of s 6(d) cannot be accepted.

78. The relevant circumstances in these proceedings were these.

79. In 2009, Mr Mohareb brought a claim against his former employer and other defendants. His amended statement of claim was struck out by White J in October 2009 as the result of the failure to adequately plead his case (see Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2009] QSC 324). The proceedings then had a considerable procedural history before they were struck out, with various costs orders having been made against Mr Mohareb which White J observed he had contested. It was Mr Mohareb’s third further amended statement of claim which was struck out by his Honour in March 2010 in Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2010] QSC 126.

80. Thereafter, Mr Mohareb did not pursue these claims any further.

81. In his March 2010 judgment White J had observed at [33], however, that properly pleaded, Mr Mohareb might have a case “but, apparently he refuses to retain an appropriately skilled lawyer to act for him to settle these pleadings”.

82. Mr Mohareb’s unchallenged affidavit evidence was that he had initially sought legal advice, at a time when he was without a job, and had decided that he would have to be self-represented. His initial pleading difficulties were the result of his then lack of experience with litigation and ignorance of the rules of pleading, not an intention to harass or annoy, to cause delay or detriment, or for another wrongful purpose. After his first statement of claim was struck out, he engaged solicitors at considerable expense, to settle his amended pleadings, but still they were rejected by the Court.

83. When the proceedings were struck out, despite considering that to have been the result of problems not of his making, he did not appeal.

84. On all of that evidence, I consider that it is not open to conclude that these proceedings were vexatious.

85. In my view, inadequacy of pleadings filed, with the result that they are struck out, without more, is not a basis on which it can be concluded that proceedings such as these, which have an apparent basis, are vexatious. Nor can successful applications seeking leave to replead be found vexatious, even though the result may be that a hearing date is not allocated as quickly as it otherwise might be.

86. By way of contrast, repeated filing of further pleadings which do not attempt to address problems which have been identified in interlocutory judgements given, whether or not that is intentional, with the result of real delay and unnecessary costs being incurred will, however, bring the proceedings within s 6(d), because so to conduct the proceedings is undoubtedly wrongful.

87. The evidence does not establish that this was such a case.

88. To the contrary, despite the legal assistance Mr Mohareb pursued when he recognised his own shortcomings, the further pleadings filed were rejected as being inadequate. That does not establish that thereby the proceedings became vexatious.

89. As the Attorney accepted, Mr Mohareb's initial pleadings did not provide a basis for the conclusion that the proceedings were vexatious. The further pleadings his legal representatives drafted were also inadequate. It is conceivable that it could be found in such circumstances that thereby the party who it is alleged pursued vexatious proceedings conducted them in a way so as to cause delay or other detriment. Such a conclusion would be open, for example, if it were found that the legal representative had been acting in concert with the person sought to be declared vexatious, as s 8(1)(b) contemplates.

90. Where, however, it is apparent incompetence on the part of a legal representative, for which the client cannot reasonably be held responsible, which has resulted in further pleadings being struck out, it will be difficult to conclude that the proceedings have been conducted in a way that brings them within s 6(d).

91. I am satisfied in Mr Mohareb’s case that the pleading difficulties which led to these proceedings being struck out, were not such that it could properly be concluded that these were vexatious proceedings as defined in s 6(d). The undoubted delay and detriments which resulted from the pleading deficiencies which led to the proceedings being struck out were not, however, “wrongful”, in the way I have discussed.

92. Even if it could be concluded on the broad interpretation of s 6(d) for which the Attorney contended, that the apparent incompetence of the legal representatives White J criticised was enough to bring these proceedings within that part of the definition of ‘vexatious proceedings’, I do not consider that result would provide a proper basis on which the discretion to make orders under the Act against Mr Mohareb could justly be exercised, even if it were able to be concluded that he had frequently instituted or conducted such vexatious proceedings.

The Jankulovski proceedings

93. The Attorney accepted that the case advanced has to be considered in the context of what the parties to these proceedings respectively did.

94. These were also proceedings not unmeritorious on their face and concluded in a settlement which was on Mr Mohareb’s uncontested evidence favourable to him. The Attorney did not contend that they were vexatious, but rather argued that certain interlocutory applications which Mr Mohareb had brought were.

95. These were proceedings in which Mr Mohareb was not represented and in respect of which he accepted that some of his interlocutory applications were clumsy, misconceived and in some cases, incompetent, as was found. He denied, however, that any of the steps which he took were intended to harass, annoy, cause delay or detriment or achieve any wrongful purpose.

96. On Mr Mohareb’s evidence, it was in large measure not he who was responsible for delays in the pursuit of the litigation, but the defendants. The parties had reached agreement, on his evidence three times, before the final agreement by which the proceedings were settled was arrived at. On his case that explained a large part of the delay.

97. MFI 4 as finally pressed provided:

“2.   in Mohareb v Jankulovski, filing a notice of motion on 4 February 2013 for orders that:

"all documents relating to and associated with, the defendants' application for costs assessment is referred to the Police for investigation and eventual charging for the defendants and their barrister Ms Marina Dulhunty for fraudulently claiming costs which they know they are not entitled to, with the express premeditated intent of subverting the course of justice by using the costs order to intimidate the plaintiff into discontinuing the proceedings",

(see Mohareb v Jankulovski [2013] NSWSC 850 at [123]-[124], at tab 6 of Exhibit SMJ-1). This was vexatious within the meaning of sections 6(a), 6(c) and 6(d) of the VP Act;

191. As Ball J discussed in Siteberg v Maples [2010] NSWSC 1344, most individuals do not become involved in court proceedings. “Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently” (see at [31]).

192. Even so, given the narrow compass of the case which the Attorney finally pursued against Mr Mohareb, and the conclusions I have reached in relation to the very small number of interlocutory applications which I have found vexatious, I am satisfied that it is not open to conclude that Mr Mohareb has “frequently” instituted or conducted such proceedings.

193. In the result no basis for the making of the orders finally pressed by the Attorney has been established.

Discretion

196. The conclusions I have reached do not provide any basis for the exercise of the discretion to make any orders under the Act against Mr Mohareb and thus the application must fail.

Orders

197. The usual order under the Civil Procedure Rules 2005 (NSW) is that costs follow the event. In the case of an unrepresented litigant such as Mr Mohareb, that is an order that the Attorney bear his disbursements, as agreed or assessed. Unless the parties approach to be heard within 14 days, that will be the Court’s order.

198. Otherwise, I order that the Attorney’s application be dismissed.

**********

Amendments

19 December 2016 - typographical errors in

[25] - Simpson J changed Simpson J's

[38] - paragraph 6(b) changed to paragraph (6(c)

[39] - Beazley J changed to Beazley P

[111] - Harrison J's changed to Harrison AsJ's

Decision last updated: 19 December 2016