Mohareb v Kelso

Mohareb v Kelso - [2018] NSWCA 246 - NSWCA 2018 case summary — Zoe

Judgment

THE COURT: On 30 July 2018 the Court, as presently constituted, refused an application by the applicant, Nader Mohareb, for leave to appeal from two sets of orders made by the Judicial Registrar in the District Court. [1] On 13 August 2018 the applicant filed a notice of motion seeking to have the orders (other than order (1) which granted him an extension of time) set aside. He further sought a grant of leave to appeal from the orders of the District Court and final orders reversing the orders made by the Registrar of the District Court on 19 February 2018. (The last orders sought would only be made on an appeal and may be disregarded.)
The grounds identified in the notice of motion alleged actual bias on the part of the members of the Court. That ground would fall within the terms of an irregularity, illegality or order made against good faith, within Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1), as noted in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council, [2] referring to Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd, [3] following and applying Cameron v Cole [4] and Taylor v Taylor. [5]
Order (1) in the notice of motion invited the President to make a finding of actual bias on the part of the Court as constituted to make the orders. However, a judge of the Court has no power to make an order disqualifying other members of the Court from sitting on a matter to which they were assigned and which has now been determined. There were two courses open to the applicant. One was to make an application for special leave to appeal to the High Court; the other was to make an application to reopen the hearing in this Court. The latter course was the only available course in this Court and it may be assumed that the present application seeks to reopen the refusal of leave to appeal; indeed, that was the term used in the applicant's written submissions, filed on 10 September 2018 in support of the notice of motion at paragraph 2 (set out in full below).
Before addressing that application, it is necessary to note that order (2) in the notice of motion sought findings of actual bias on the part of not only the Judicial Registrar of the District Court, but three members of the District Court who have been involved in the applicant's proceedings in that Court. Such orders could only be made in this Court on an appeal. They cannot be obtained by a motion in proceedings seeking leave to appeal.
The applicant made it clear, both in his notice of motion and in his written submissions, that his complaint against this Court was one involving actual bias; he expressly eschewed any reliance on reasonable apprehension of bias. It is a basic principle of procedural fairness that a tribunal called upon to act judicially must approach a claim before it without prejudgment and with a mind open to a fair consideration of submissions made to it. However, as the High Court noted in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, [6] "[s]uch a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it."
The institutional setting will be important in such a consideration. In the present case, the Court was dealing with an application for leave to appeal with respect to which oral submissions were limited to 20 minutes and it may be expected that the judges constituting the bench will have given consideration to the documentary material before the matter is heard. While the Court may have formed a tentative view as to the likely outcome, it will certainly have formed a view as to the issues to be addressed. Given the limited time allowed for oral submissions, the Court will expect that those submissions will be strictly focused upon the relevant issues.
The applicant relied, as evidence of bias, on attempts by the Court in the course of the hearing to have the applicant identify the issues he was seeking to address. Such questioning did not demonstrate any element of prejudgment, but rather the importance of a disciplined approach to submissions on a leave application. As explained in the 30 July judgment, in dealing with an allegation of bias against the Judicial Registrar of the District Court, the applicant appeared to have faced similar problems in that Court, including "a failure to answer questions directly, which led to further intervention by the [District] Court." [7] Similar complaints are now made about the conduct of this Court in the course of the hearing on 20 July 2018. The attempts by the Court to identify the issues which the applicant was seeking to address do not demonstrate any element of prejudgment or actual bias.
Paragraph 2 of the applicant's written submissions read as follows: "According to established authority, the circumstances in which the court will reopen its refusal of an application for leave to appeal, are supposed to fall into one of two categories: (a) Where there has been a material change of circumstances, relevant to the leave application. (b) Where there has been demonstrable misunderstanding by the court of a material aspect of the applicant's case, in particular when the applicant is a self-represented litigant. I will endeavour, in my submissions, to demonstrate that, in the present case, both of the abovementioned circumstances have eventuated and are thus fulfilled."
The change in circumstances relied upon was the acceptance by the Judicial Registrar on 9 August 2018 of one aspect of the directions sought by the applicant in the District Court. Not only does that event not justify reopening the leave application, it illustrates one reason why this Court is reluctant to grant leave with respect to interlocutory procedural rulings by a trial court.
So far as possible misunderstandings were concerned, the applicant's written submissions addressed in some detail what was described in the judgment as an oblique foreshadowing of a recusal application. [8] The submissions alleged that this statement constituted a "gross misrepresentation" of the applicant's position. The submissions undertook a detailed analysis of what was said in the course of the hearing on the leave application, by reference to the transcript, and in the reasons for judgment. A reconsideration of the transcript in the light of these submissions does not demonstrate any misunderstanding as to the applicant's position.
At the end of the hearing on 20 July 2018, because the applicant had been under a misapprehension that the leave application would be dealt with on the following Monday, [9] the Court directed that the applicant file and serve any further submissions with respect to the application for leave to appeal from the orders of the Judicial Registrar by 4pm on Monday, 23 July 2018. [10] In his written submissions on the present application, the applicant stated that he "understood this as [the Court] giving me the opportunity to provide the evidence and grounds in support of the allegations of actual bias in the District Court …". [11]
There followed in the applicant's submissions a careful dissection of the reasons given by the Court for refusing the relief sought by him. It is clear that he disagreed not only with the outcome, but with the reasoning of the Court. The "misunderstandings" upon which the applicant relied are better characterised as, in part, strong disagreement with the inferences drawn by this Court from the material before it and, in part, an assumption that it is necessary in giving reasons for refusing leave to advert to every aspect of the submissions put before the Court and the material relied upon by the unsuccessful applicant.
Regarding the former point, strong disagreement with a judgment not only does not demonstrate bias, but misconceives the nature of the challenge sought to be raised because it will rarely carry any inference as to prejudgment. It does not do so in the present case.
Neither is the assumption concerning the scope of reasons justified. As indicated in the 30 July judgment, the applicant had sought to tender a fresh affidavit (not served on the respondents) at the commencement of the oral hearing which, with annexures, covered some 290 pages; [12] further, when subsequently given leave to file a submission limited to five pages, he filed a submission of 40 pages. [13] Rather than refuse to accept this material, the Court had regard to it; it did not follow that it was necessary to deal in detail with all aspects of the material, or indeed any aspect, unless it was patently relevant to the issues before the Court.
Some only of the criticisms of the hearing on 20 July and the 30 July judgment were expressly identified as a basis for the allegation of actual bias on the part of this Court. Those which were so identified did not demonstrate actual bias. By way of example, the reasoning contained at [40] of the 30 July judgment was said to demonstrate "intellectual dishonesty" and "an absence of good faith" (curiously on the part of one member only of the Court despite the fact that the judgment was that of "the Court"). Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias. The same may be said for the proposition that bias was demonstrated by the fact that one member of the Court as constituted on 20 July had sat with other members of the Court on three prior occasions on which the applicant had been refused leave to appeal.
Finally, it should be noted that the applicant has sought to have the reopening application heard in open court. In the absence of a substantial case for reopening which would justify involving the respondents, with the possible incurring of further legal costs, that step should not be taken. The applicant's written submissions were detailed and extensive (and exceeded by 50% the number of pages permitted to an appellant on a full appeal). The arguments were lucidly expressed. However, they do not warrant a further hearing.
The notice of motion filed by the applicant on 13 August 2018 is dismissed.

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