Mohareb v Kelso

Procedural history: Court of Appeal

1. The applicant correctly proceeded by way of a summons seeking leave to appeal, leave being required because the challenged orders were interlocutory. [3] Pursuant to s 48(2)(f) of the Supreme Court Act 1970 (NSW) proceedings by way of appeal from a "specified tribunal" are assigned to this Court. The term "specified tribunal" is defined in s 48(1)(a), relevantly for present purposes, to refer to "the District Court or a Judge of the District Court (but not a Judicial Registrar of that Court)". [4] Accordingly, the present application should have been commenced in the Common Law Division. However, pursuant to s 51(2)(d) of the Supreme Court Act, where the proceedings are not remitted to a Division, they may be continued and disposed of in this Court. Registrar Riznyczok declined to make an order remitting the proceedings to the Common Law Division.
2. The Registrar's decision refusing to remit the matter was given on 19 February 2018. He provided reasons for that decision to which further reference will be made shortly. By a notice of motion dated 18 April 2018, the applicant sought leave to amend his summons to include an order seeking leave to appeal from the Registrar's order of 19 February 2018 to "decline to remit [the] matter to the Common Law Division".
3. There is provision for review of decisions of a registrar (other than a Judicial Registrar of the District Court) provided under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 49, Div 4. The power of review extends to a decision of the Registrar of this Court, which may be reviewed by a judge of this Court, pursuant to UCPR r 51.59.
4. Pursuant to UCPR r 49.20(1), an application for review of a decision of a registrar is to be instituted by filing a notice of motion. The motion must be filed within 28 days of the date of the order to be reviewed, but that date may be extended. [5] The applicant's motion of 18 April incorrectly sought to amend the summons seeking leave to appeal from the Judicial Registrar of the District Court, but that is a matter of form. In substance, it sought a review of the decision of Registrar Riznyczok and should be treated as a notice of motion having that effect. There is no reason why an extension of time should not be granted up to and including the date of filing, namely 18 April 2018.
5. There is logic in considering the application to review the decision of Registrar Riznyczok before addressing the substance of the application for leave to appeal. That is because, if the Court concluded that the Registrar was in error in failing to remit the matter, the Court would no doubt itself remit the application for leave to appeal to the Common Law Division and would not itself determine the leave application. On the other hand, the possible merit of the application for leave to appeal is itself a relevant consideration in determining whether the matter should be remitted.
6. Before the jurisdictional issue had been identified, the President directed that the leave application be listed for hearing in February 2018. As a result of injuries suffered by the applicant in the course of an assault on him, that date was vacated and the matter was relisted for hearing on 24 April 2018. Prior to that date, the applicant sought a further adjournment. By that stage, the applicant had (on 18 April 2018) sought leave to amend his summons to challenge the decision of the Registrar not to remit the matter.
7. On 23 April 2018 the Registrar advised the parties that the leave only hearing and the motion to amend would both be listed for hearing on Friday, 27 July 2018. The parties were given an opportunity to indicate whether that date was inconvenient. On 27 April the applicant proposed other dates, including 20 and 23 July 2018. The Registrar then made the following orders, notice of which was given by email to the parties on 3 May 2018: "1. Vacate the hearing on 27 July 2018. 2. Relist the matter for a leave only hearing on 23 July 2018. 3. List the applicant's motion for hearing on 20 July 2018."
8. On 18 July 2018 the Registrar emailed the parties again stating that the Court proposed to hear both the motion and the leave application on 20 July 2018. The orders made on 3 May 2018 were varied to reflect that change.
9. At the commencement of the hearing on 20 July, the applicant stated that he was prepared to address only the motion and not his application for leave to appeal. He took that position despite the facts that (a) the white folder for the leave application, which had been filed many months earlier, included a written summary of argument prepared by the applicant, (b) the effect of the changed date was to have the leave application listed on the working day preceding the date fixed on 3 May, and (c) he had a full working day's notice of the change. The issues relevant to the question of leave had been addressed in written submissions and were further addressed in the course of oral submissions which extended well beyond the 20 minutes usually allowed for a leave application. However, as the applicant nevertheless maintained that it would be procedurally unfair to require him to deal in full with the leave application on that day the Court permitted him an opportunity to make further written submissions in respect of the leave application, limited to five pages, to be filed and served by 4pm on Monday, July 23, being the date originally fixed for the hearing of that application. (The only respondent who appeared at the hearing, Mr Roderick Smith did not seek an opportunity to reply; no respondent had filed a notice of appearance in this Court.)
10. On 23 July 2018 the applicant filed further written submissions in support of his applications generally. Far from being confined to five pages, the document ran to 40 pages. Further, far from being confined to his application for leave to appeal, the document ranged across both applications, much of it dealing with proceedings in the District Court which were not the subject of the current applications. It appears that these sections were in support of the submission that "it would be virtually impossible for [the applicant] to be afforded a fair, just and objective hearing of [his] complaints in the District Court." [6] So far as relevant to the matters now before this Court, the issues raised are addressed below.

(1) Foreshadowed recusal application

1. In the course of the applicant's oral submissions in this Court, oblique reference was made to matters of bias and prejudice, which appeared to foreshadow a recusal application addressed to one or both of the members of the Court as constituted to hear the proceedings. When asked whether he was making a recusal application, the applicant affirmed that he intended to do so, but wanted, in effect, to keep it in reserve. The Court noted that that course was not available; if the Court were not properly constituted to hear the matter, because, for example, of a reasonable apprehension of prejudgment, then it should desist from hearing the matter immediately. It was not open to hold such an application in reserve until some future time. The applicant expressed disagreement with that proposition, but at no stage during the oral hearing did he make a recusal application. Accordingly, it is not necessary (or possible) to address the issue further.

(2) Tender of further evidence

1. At the commencement of the oral hearing, the applicant sought to tender a fresh affidavit, dated 18 July 2018 together with some 290 pages of annexures. The affidavit and annexures had not been served on the respondents; Mr Smith, who appeared (in person) at the hearing on 20 July, had been provided with a copy of the document only when he arrived at court.
2. Despite the procedural impropriety of the tender, a brief review of the contents of the affidavit and the annexures suggested that it was of limited relevance and was unlikely to be prejudicial to the interests of the respondents. Accordingly, the Court treated the affidavit and annexures as an exhibit and admitted the exhibit subject to identification of its relevance. That task was assisted by the orderly setting out of the matters identified in the affidavit and the annexed documents.
3. The affidavit was relevant in so far as it established the following propositions, though not otherwise. 1. The affidavit annexed copies of the statements of claim in the various proceedings commenced in the District Court. These included two statements of claim against the first respondent (Mr Kelso); two statements of claim against the seventh respondent (Mr Booth), and what was described as a "secondary negligence statement of claim" against the second-sixth respondents. The applicant submitted that this material supported the proposition that Mr Kelso had "waged a five (5) years long campaign of vilification & defamation, bullying, intimidation as well as numerous violent & extremely destructive acts of vandalism against my property, all of which culminated in his attempted murder against me on the night of 4th December 2017." Both the allegations and the material were largely repetitive of materials already contained in the white folder. 1. The affidavit referred to two sets of proceedings for defamation commenced by the applicant in the Common Law Division against Harbour Radio Pty Ltd (Radio 2GB) and Fairfax Media Publications Pty Ltd (the publisher of the Sun Herald). The subject matter of the publications complained of in the defamation proceedings involved the allegations which formed the basis of the District Court litigation, together with suggestions that the applicant was a vexatious litigant. The affidavit noted that the Attorney General had commenced proceedings in the Supreme Court to have the applicant declared a vexatious litigant, and that the proceedings had been dismissed in December 2016. [7] 1. The affidavit also stated that a notice of motion had been filed in the Supreme Court defamation proceedings seeking to have all of the District Court proceedings transferred "to the Supreme Court's Defamation List and that they be amalgamated with my Supreme Court defamation proceedings." The affidavit annexed a copy of a notice of motion to that effect which had been filed on 18 July 2018. (The copy of the notice of motion did not bear a listing date.)
4. The applicant submitted that the second and third categories of material supported the remittal of the application for leave to appeal to the Common Law Division, where it was suggested that it could be dealt with by McCallum J, as the judge administering the Defamation List.

(1) Reasons of Registrar

1. Registrar Riznyczok gave two reasons for not remitting the matter to the Common Law Division. First, the jurisdictional issue had only been raised by the Court after the matter had already been listed for hearing of the leave application on one occasion. Secondly, the applicant had sought a stay of the orders of Judicial Registrar Howard in the District Court. The refusal of the stay application by Gibb DCJ might, Registrar Riznyczok noted, be seen as an adoption of the Judicial Registrar's orders, so that it would be appropriate for the matter to be dealt with by this Court as in substance an appeal from a decision of a District Court judge.
2. One consequence of refusing to remit the matter to the Common Law Division is that the applicant is, at least in theory, deprived of the possibility of a further appeal if he were to be unsuccessful before a judge in the Common Law Division. However, that possibility is not one that the applicant originally relied on when he filed in this Court, and the requirement that matters of procedure be dealt with as expeditiously as possible, limiting the potential costs to the parties, militate against a remittal for that reason.
3. Accordingly, no error has been demonstrated in the decision of the Registrar to refuse to remit the matter to the Common Law Division.

(2) Other considerations

1. UCPR r 49.19 provides that the Court may on application by any party "review the direction, certificate, order, decision or other act" of the Registrar and "make such order, by way of confirmation, variation, discharge or otherwise as the court thinks fit." This language does not confer a right of appeal and, it may be accepted, the form of review is not constrained in the way that the powers of the Court are constrained by a right of appeal, even a right by way of rehearing. [8] On that basis, it is open to the Court to have regard to the further circumstances referred to in the applicant's affidavit of 18 July 2018, including the existence of the defamation proceedings in the Supreme Court and the fact of the notice of motion seeking to transfer the District Court proceedings into the Common Law Division.
2. The material is, however, of no assistance in relation to this application. No doubt there is a factual relationship between the events which gave rise to the District Court proceedings and the publicity concerning those proceedings which in turn led to the commencement of separate proceedings against the publishers in defamation. However, it does not follow that (a) all the proceedings should be dealt with by the same judge; (b) proceedings commenced in one court by the applicant should be transferred to another court in order to be in the same court as other proceedings brought by the same applicant; (c) it will ever be convenient to hear claims in trespass with claims in defamation, or (d) that proceedings properly commenced in the District Court should, some years after their commencement, be transferred to the Supreme Court.
3. The Court was mindful of the possibility that, if a judge were to accede to the applicant's proposal to transfer the District Court proceedings to the Common Law Division, any directions as to the running of the proceedings in the District Court would become moot. On that view, the application for leave to appeal from the orders of the Judicial Registrar would lack utility and the summons seeking leave to appeal could be dismissed on that basis. However, the applicant did not adopt that suggestion, submitting that any orders made by the Judicial Registrar would continue to have weight, even if they did not govern the further conduct of proceedings in the Common Law Division. The possibility of a transfer should therefore be disregarded.

(3) Application for leave to appeal

1. The final matter to be considered, which in the view of the Court is conclusive in the present circumstances, is the underlying merit of the application for leave to appeal.

(a) refusal of consolidation application

1. With respect to the application to "amalgamate" the various proceedings, the Judicial Registrar gave reasons for his determination which are not before this Court. However, he later summarised his refusal in the following terms: [9] "Just to confirm my reasons, it's a combination of the proper allocation of court resources, the hearing in one matter can proceed and that is to be dealt with first. The first Kelso matter is to be dealt with first because that is the oldest matter. The Booth matters can be prepared and set down for appropriate hearing length. The remaining matters can be prepared. I don't see at this stage that these three matters, that although they have the same defendants, they all have separate incidents and causes of action, and so they should be dealt with in the ordinary way and put to a hearing date as soon as possible and not wait for other matters which are coming later."
2. The reasons for not "amalgamating" the matters were substantially the same as the reasons given by Gibson DCJ (in the judgment from which leave to appeal was earlier refused by this Court) for not permitting the addition of new defendants and new causes of action to the original Kelso proceeding. In short, the Court considered that to have a single hearing of claims involving a number of separate incidents, defendants and causes of action was not an efficient way of managing the proceedings and addressing the issues in dispute. It cannot be said that such a conclusion is unreasonable or an improper exercise of discretion.
3. This Court will be reluctant to intervene in any review of, or appeal from, such procedural rulings by a trial court. That principle, long ago established in In Re the Will of F B Gilbert (Deceased), [10] has been consistently applied over many decades. In the present case, there is no reason to suppose that this Court would intervene if leave were granted. Leave to appeal from the decision of the Judicial Registrar of 8 September 2017 should be refused.

(b) refusal to enter default judgment

1. With respect to the application for leave to appeal from the refusal to enter default judgment in the defamation proceedings in the District Court, the material before the Court was deficient. The applicant said nothing had happened since the statement of claim was filed. However, the transcripts indicated a more complex situation.
2. The defamation proceedings against Mr Booth were the subject of a number of directions hearings in the District Court. On 17 February 2017 the applicant submitted that the matter was ready to be set down for a hearing with respect to damages, no defence having been filed. It appears, however, that the first notice of motion seeking a default judgment was filed by the applicant on 1 March 2017. That motion came before the Judicial Registrar on 24 March 2017, both the applicant and Mr Booth appearing in person on that occasion. (Mr Booth had on a previous occasion been represented by an agent appearing for his solicitor, Coyne Legal.) On 24 March Mr Booth told the Registrar that he had been informed by his solicitor that "this defamation case along with the torts and trespass to person had been placed on, on the inactive list and that is the reason why a defence was not filed because a notice of motion was not received by myself or my solicitor…". It appears that, upon the applicant filing a summons seeking leave to appeal from the earlier judgment of Gibson DCJ, various matters had been placed on the "inactive list" in the District Court pending determination of the appeal to this Court. That appeal did not involve proceedings against Mr Booth, but those proceedings were being listed for management together with the proceedings against Mr Kelso and, for that reason were treated as temporarily inactive matters.
3. On 6 November 2017 the two proceedings against Mr Booth were listed before the Judicial Registrar. Mr Booth was represented by a Mr Pritchard, appearing as agent for Coyne Legal. Mr Pritchard handed up an affidavit of Mr Coyne, which is not before this Court. However, it is apparent from the submissions that two matters were addressed in the affidavit. One was a history of discussions between the parties in an attempt to settle the defamation proceedings; the second was the filing by the applicant of a notice of intention to appeal from interlocutory decisions in a number of proceedings in the District Court, including the defamation proceedings against Mr Booth. The discussions not having proceeded to a conclusion, the defendant had served an offer of amends pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW).
4. In the course of the November directions hearing, the Judicial Registrar explored with the applicant the possibility that the offer might be accepted or the proceedings otherwise settled. He was then advised that the offer had expired a few days earlier. Further, in the course of discussion, Mr Mohareb explained that, although the defamation proceeding was listed on the notice of intention to appeal, he had no intention of appealing the directions in the defamation proceeding against Mr Booth. Having addressed all of these matters, the Judicial Registrar concluded: [11] "So, look, in terms of the defence what I think is appropriate is I'll give a short extension for the defence to be filed and served and then we'll go on to the next management of the matter." A direction was made requiring that any defence be filed and served by 27 November 2017.
5. The applicant sought to challenge the refusal of the Judicial Registrar to enter a default judgment on two bases, namely that (a) the offer of amends had been made out of time and (b) the Judicial Registrar was biased against him.
6. With respect to the first matter, it is by no means clear that the offer was out of time. Pursuant to s 14(1) of the Defamation Act, an offer cannot be made if 28 days have elapsed since the publisher was given a "concerns notice" by the aggrieved person or a defence has been served. There was no evidence that a "concerns notice", as defined in s 14(2), had been given; certainly no defence had been served. In any event, it was comfortably within the discretion of the Judicial Registrar not to allow entry of a default judgment in circumstances where the defendant was represented, there had been discussions between the parties and the matter had been placed in the "inactive list" pending determination of the earlier application for leave to appeal to this Court.
7. With respect to the allegation of bias, two points should be made. First, a reading of the transcript of the hearing on 6 November 2017, when the impugned order was made, demonstrates that all of the issues raised by the parties were addressed in careful and considered terms. Secondly, it is true that there are passages in earlier transcripts in which the applicant was dealt with in terms which reveal a level of exasperation on the part of the Court. The applicant sought to treat such examples as demonstrating a disposition not to accord serious consideration or fair treatment to self-represented litigants and a persisting view that, despite the failure of the Attorney-General's proceedings against the applicant, he was in fact a vexatious litigant and was to be treated as such.
8. In fact, the transcripts clearly reveal three problems which arose from time to time in the course of the hearings, although by no means consistently. The first was a habit of the applicant to interrupt proceedings, especially when the Judicial Registrar was speaking. Secondly, there was a failure to answer questions directly, which led to further intervention by the Court. Thirdly, there were occasions on which the applicant continued to question rulings after they had been made. It is entirely likely that what the applicant perceived as antagonism and unfair treatment was the response of the Court to the forms of conduct on the part of the applicant just noted. The material available to this Court provides no basis for concluding that the Judicial Registrar demonstrated bias, either actual or apprehended, with respect to the applicant.
9. No error of principle has been demonstrated in the refusal of the Judicial Registrar to enter a default judgment.

(4) Conclusions - remittal application

1. It follows from the matters set out above that, (a) no error was demonstrated in the decision of the Registrar not to remit the matter to the Common Law Division; (b) the further considerations raised by the applicant do not support an order of remittal, and (c) in circumstances where the application for leave to appeal lacks merit, a remittal would be futile. Accordingly, the application to review the refusal of the Registrar to remit the application for leave to appeal to the Common Law Division should be dismissed.

Application for leave to appeal

1. As the application for leave to appeal from the interlocutory decisions in the District court is without merit, for the reasons set out above, it must be dismissed.

Orders

1. The Court should make the following orders: 1. Grant the applicant an extension of time within which to seek review of the order of the Registrar of 19 February 2018 declining to remit the application for leave to appeal to the Common Law Division. 2. Dismiss the application to review the decision of the Registrar. 3. Otherwise dismiss the applicant's notice of motion dated 18 April 2018. 4. Dismiss the summons filed 28 November 2017 seeking leave to appeal from the following orders of the Judicial Registrar of the District Court: 1. order (3) made on 8 September 2017 in matter 2015/201139; and 2. orders (1)-(4) made on 6 November 2017 in matter 2016/292950.
2. As none of the respondents has filed a notice of appearance in this Court, there will be no order as to the costs of the proceedings in this Court.

Endnotes

1. Mohareb v Kelso [2016] NSWDC 208.
2. Mohareb v Kelso [2017] NSWCA 98.
3. District Court Act 1973 (NSW), s 127(2)(a).
4. Supreme Court Act, s 48(1)(a)(iv).
5. UCPR, r 49.20(4).
6. Written submissions filed 23 July 2018, par 2.
7. Attorney General (NSW) v Mohareb [2016] NSWSC 1823 (Schmidt J).
8. See generally, Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [43]-[51].
9. Tcpt, 08/09/17, p 30(5).
10. (1946) 46 SR(NSW) 318.
11. Tcpt, 06/11/17, p 8(47). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2018