Mohareb v Kelso

Supreme Court of NSW|2020-09-24|Before: Ierace J

Solicitors: MCW Lawyers (Ex-Third Respondent) File Number(s): 2020/174984

Judgment

HIS HONOUR: By an amended notice of motion filed on 3 September 2020, the applicant, Nader Mohareb, seeks that certain orders made by the Common Law Registrar on 13 August 2020 be set aside and that other orders be made in their stead. The applicant also seeks access to a court file, leave to issue two subpoenas, and an order for the arrest and detention in custody of the respondent pursuant to Pt 55, Div 3, r 10 of the Supreme Court Rules 1970 (NSW). I will consider this latter aspect of the notice of motion after separately considering the challenge to the Registrar's orders.

The Registrar's directions hearing

The Registrar of the Common Law Division held a directions hearing for the matter on 13 August 2020. The applicant appeared in person. Two respondents appeared, being John Kelso, who was represented by his solicitor Mr Prowse, and Roderick Smith, who appeared in person. The Registrar made the following orders: "1. The notice of motion filed on 01/02/18 in the Court of Appeal proceedings 2017/301390, which was remitted to the Common Law Division of the Supreme Court by order of Simpson AJA on 05/06/20, is dismissed. 2. The Plaintiff has leave to file and serve an Amended Summons in the form attached to this Record of Proceeding by 21/08/20. 3. The Plaintiff is to pay the second respondent's costs of responding to the notice of motion filed on 01/02/18 in the Court of Appeal proceedings 2017/301390, as incurred in relation to the remittance of that notice of motion to the Common Law Division of the Supreme Court. 4. Stood over for directions hearing on 27/08/20."
It is apparent from the transcript of the directions hearing that the Registrar's intention was for her third order to be in favour of Mr Prowse's client, who was referred to as the second respondent throughout the hearing and had been named as such in the judgment of Simpson AJA, although he was the third respondent to the notice of motion itself, filed on 1 February 2018.
The relief claimed by the applicant in the summons that is attached to the Registrar's record of proceedings, which names the respondent as the only defendant, is as follows: "1 The defendant is punished for Criminal Contempt of Court, pursuant to Part 55, Division 3 of the Supreme Court Rules 1970. 2 Leave to the plaintiff to prosecute the defendant for Perverting (and/or Attempting to Pervert) the Course of Justice, pursuant to Section 319 of the Crimes Act 1900; or 3 In the alternative, that the ODPP is directed to prosecute the defendant for Perverting (and/or Attempting to Pervert) the Course of Justice, pursuant to Section 319 of the Crimes Act 1900. 4 Leave to the plaintiff to prosecute the defendant for Committing an Act of Reprisal against an Opponent in a Judicial Process, pursuant to Section 326 of the Crimes Act 1900; or 5 In the alternative, that the ODPP is directed to prosecute the defendant for Committing an Act of Reprisal against an Opponent in a Judicial Process, pursuant to Section 326 of the Crimes Act. 6 The defendant is held liable for damages (both aggravated and punitive) caused to the plaintiff as a result of the above mentioned criminal offenses. 7 The defendant to pay the plaintiff's costs."
In compliance with the Registrar's second order, the applicant filed an "Amended Summons" the same day, in the same form as that which was attached to the Registrar's orders.

The applicant's challenge to the Registrar's orders

The applicant appeared before me without legal representation, relying on an affidavit in support of his amended notice of motion, some material that was attached to an earlier, abandoned set of written submissions, and certain other material filed in earlier proceedings. He made oral and written submissions. As before the Registrar, only John Kelso and Roderick Smith appeared. John Kelso was represented by counsel, and Mr Smith appeared in person.
The orders sought by the applicant in relation to the Registrar's orders are as follows: "1. Orders (1) & (3) of Common Law Registrar Karen Jones of 13th August 2020 are set aside, pursuant to UCPR Rules 36.15 and/or 36.16 and/or 36.17 2. In their place, there be an order for costs/disbursement for the Applicant, to be payable forthwith and on the indemnity basis, and if not then to be payable forthwith and if not then on the ordinary basis. 3. In the alternative of the above mentioned Orders (1) & (2), that there be a review of Orders (1) & (3) of Common Law Registrar Karen Jones of 13th August 2020, pursuant to UCPR Rule 49.19."
The applicant challenges the Registrar's first order on the basis that, subsequent to the orders of Simpson AJA and prior to the hearing before the Registrar, the notice of motion had ceased to exist and, therefore, it could not be dismissed. The evidentiary basis of this proposition is the terms of the notice of listing of the Registrar's initial directions hearing for this matter on 23 June 2020 ("the notice of listing"). It stated: "Notice of Motion filed on 2017/301930 (Court of Appeal) remitted to Common Law to be filed as Summons."
In the proceedings before the Registrar and before me, the applicant submitted that the notice of listing is to be understood as meaning that the notice of motion had been "filed into the Common Law Division as a summons". The applicant has not advanced any further evidence or argument in support of his challenge to the Registrar's first order.
The basis of the applicant's challenge to the third order is that John Kelso was disentitled to costs because his appearance at the hearing before the Registrar was unnecessary. This was because the applicant had informed the other respondents, including John Kelso, prior to the Registrar's hearing that he only intended to pursue the orders sought in his notice of motion that affected the respondent.
The applicant submitted that he first made his intention clear in the hearing before Simpson AJA. The applicant also relied upon a statement by him in an email dated 28 June 2020 ("the 28 June email") which he sent to John Kelso and others, in which he stated, referring to the third order in his notice of motion that had been remitted to the Common Law Division: "… in view of the fact that Order (3) which concerns the second to sixth respondents/defendants has now become redundant as result of having been overtaken by subsequent proceedings - I no longer wish to press that order and I do not have any objection to it being dismissed or to the particulars relating to it being removed. As a consequence this proceeding would no longer contain any claim against any of the second to seventh respondents/defendants and as such they would cease to be parties to this proceeding."
The reason for the applicant's reference to six, rather than seven, respondents in the first quoted paragraph is not apparent. I assume it was unintended. Attached to the email was a document he referred to as a "Draft Proposed Summons", which was in the same terms as the relief sought in the draft summons attached to the Registrar's orders.
At the hearing before the Registrar, the applicant confirmed that he had indicated by the 28 June email that he was proposing to proceed only against the first respondent, and that he had no objection to the proceedings against the remaining six respondents being dismissed. Mr Prowse sought clarification that the applicant was "withdrawing unconditionally the notice of motion that was filed in 2018", to which the applicant responded: "Okay, well, I'm not withdrawing anything, it's the Court that ordered that the motion be filed as a summons". Mr Prowse submitted that he was content for the Registrar to dismiss the notice of motion with costs in the hearing before the Registrar.

Consideration

In my opinion, rr 36.15 and 36.17 of the UCPR are irrelevant to the applicant's challenge. The former permits the setting aside of a judgment or order if it was attended by irregularity, illegality or if it was not made in good faith, which I do not understand the applicant to be alleging. The latter is a slip rule, intended for the correction of accidental slips or omissions, which also are not alleged by the applicant. Rule 36.16 is relevant insofar as the orders affect the respondent, as he was not represented at the directions hearing: r 36.16(2)(b). Rule 49.19 permits a review of directions and orders made by a registrar, and is relevant to the orders insofar as they affected John Kelso and Roderick Smith, since they were represented or present at the hearing. Rules 36.16 and 49.19 are relevantly as follows: "36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if - (a) …; or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) … (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order. … 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. (2) …"
In relation to the applicant's challenge to the first order, in which he relied on the wording of the notice of listing to argue that the notice of motion had been transformed into a summons by the Registry, the Registrar explained to the applicant: "… just because someone from the registry has marked on the document the words 'summons' doesn't mean it's filed as a summons. It needs to be filed as a summons and you've amended the claim significantly so that needs to be filed and served in the usual way."
I agree with the Registrar's observation as to the insignificance of the reference to an amended summons in the notice of listing. The notice of motion had been remitted to the Common Law Division and the applicant had not withdrawn it, so that the Registrar was obliged to make orders in respect of it. Accordingly, the applicant's challenge to the Registrar's first order is without merit.
In relation to the applicant's challenge to the Registrar's third order, a reading of the transcript of the hearing in the Court of Appeal and the judgment of Simpson AJA provides no support for the applicant's submission that his intention to not proceed against the other respondents, in particular John Kelso, was made clear at that stage. In any event, John Kelso was not present or represented at the Court of Appeal hearing. Indeed, her Honour concluded her judgment by stating, in relation to the claims against the other six respondents, at [22]: "With respect to the claims against the second to seventh respondents, the Common Law Division may wish to give consideration to the exercise of its power of summary dismissal, or its powers under the Uniform Civil Procedure Rules 2005 (NSW), r 14.28."
In the 28 June email, the applicant referred to his interpretation of the notice of listing. In my opinion, this alone was a reasonable basis for John Kelso to arrange representation at the directions hearing, to ensure that the notice of motion was in fact dismissed by the Registrar, so that he was no longer subject to it. In all the circumstances, John Kelso was entitled to seek and receive an order for his costs occasioned by his representation at the directions hearing.
Accordingly, orders (1), (2) and (3) of the applicant's amended notice of motion are without merit.

The applicant's prayers for orders (4) to (7) of the amended notice of motion

The applicant sought further orders as follows: "4. The Applicant to be granted access to the court file - which has been transferred from the District to the Supreme Court at the Applicant's request - of District Court criminal matter [matter number] of R v Alexander Edward Kelso of the Respondent's criminal proceeding relating to his 4th December 2017 attempted murder against the Applicant. 5. Leave to the Applicant to subpoena the ODPP file in ODPP matter [reference number], relating to the above mentioned criminal prosecution of the Respondent. 6. Leave to the Applicant to subpoena the NSW Police Force file for [event number and charge number], also relating to the above mentioned criminal prosecution of the Respondent. 7. That there be orders, as the Court deems appropriate, pursuant to Clause (10) Division (3), Part (55) of the Supreme Court Rules 1970."
The further orders sought in the applicant's amended notice of motion are not relevant to the orders sought in the notice of motion that was remitted from the Court of Appeal to the Common Law Division, but rather, relate to the orders sought in the amended summons.
The filing of the applicant's amended summons requires consideration of vexatious proceedings orders made by Fagan J in Palmer v Mohareb [2019] NSWSC 975 against the applicant, pursuant to the Vexatious Proceedings Act 2008 (NSW) ("the Act"). One such order made by his Honour ("Fagan J's order") was in the following terms: "The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any new proceeding against any person in New South Wales, this order not to affect the filing of any interlocutory process in proceedings that have been commenced at the date of this order or any appeal or application for leave appeal from a decision in any such proceeding."
Fagan J's order was made on 7 August 2019. In the Registrar's directions hearing of 13 August 2020, the effect of the order was drawn to the Registrar's attention by the solicitor for John Kelso, who submitted that "any new document from Mr Mohareb would be in breach of the vexatious litigant order". The Registrar responded: "I would certainly be happy to hear from the parties about the vexatious orders, I'm not sure about that. Certainly it was my understanding that the next thing to be done today was to get the motion put into a summons and Mr Mohareb was proposing to only proceed against the first respondent. So I think in the circumstances, Mr Mohareb, and in view of the submissions made by [Mr Prowse] that it may be in breach of the vexatious orders, we probably need to have you prepare a draft summons and provide it to [Mr Prowse] and Mr Smith and they can let you know whether they have any difficulty with that summons."
Fagan J's order was not mentioned again in the directions hearing. It appears that the Registrar was of the opinion that the issue of whether the applicant's amended summons would constitute a breach of the order would be dealt with after the amended summons was filed and served on the respondent. However, once Fagan J's order was made, it became necessary for any filing to be considered in light of it and the relevant parts of the Act.
The orders sought against the respondent in the applicant's amended summons are so different from those that were sought in the 1 February 2018 notice of motion that it could not reasonably be considered to be a continuation of the same proceedings. The only similarity between the orders sought in each document is part of the first order, that is a prayer that the respondent be dealt with for "Criminal Contempt of Court"; otherwise, the relief sought in the amended summons is additional to, and substantively different from, those earlier-sought orders.
Section 13 of the Act relevantly provides: "13 Contravention of vexatious proceedings order prohibiting institution of proceedings (1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16… (b) …. (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4). (4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs. (5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4). …"
Section 16 of the Act sets out the steps that must be taken by a court and a person who is the subject of a vexatious proceedings order, before leave can be granted for proceedings to be instituted.
The term "proceedings" is defined in s 4 of the Act as follows: "4 Meaning of 'proceedings' In this Act, proceedings includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) 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."
The term "institute proceedings" is defined as follows in s 5 of the Act: "5 Instituting proceedings (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."
In my view, the filing of the "amended summons" by the applicant on 13 August 2020 was contrary to s 13(1)(a) of the Act, even though the filing was in accordance with the Registrar's orders of the same date, because it constituted an instituting of proceedings by a person subject to a vexatious proceedings order, without "the leave of an appropriate authorised court under section 16": s 13(1)(a) of the Act.
The amended summons that was filed by the applicant on 13 August 2020, although pursuant to the Registrar's second order, is stayed pursuant to s 13(2) of the Act. Further, pursuant to s 13(3) of the Act, it was taken to be dismissed 28 days after it was filed, being 10 September 2020. If the applicant wishes to pursue an action against the respondent, he is obliged to comply with the requirements of s 16 of the Act.
In relation to the question of costs, counsel for John Kelso submitted before me that if the applicant succeeded in setting aside the Registrar's first order, the effect would be to reinstate the notice of motion, so that her client would once again be a party to the proceedings. I accept that it was appropriate for John Kelso to be represented on the hearing of the notice of motion before me, and I will make an order that the applicant pay his costs.

Orders

I make the following orders: 1. The amended notice of motion filed on 3 September 2020 is dismissed. 2. The applicant to pay the costs of the ex-third respondent, John Kelso, on this notice of motion. 3. It is noted that the amended summons that was filed by the applicant on 13 August 2020 was taken to be dismissed on 10 September 2020, by the operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW).

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: 16 October 2020

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