Mohareb v Kelso

Notice of Motion filed 31 August 2021

In addition, before addressing the substantive appeal, it is necessary to consider a notice of motion filed by Mr Mohareb on 31 August 2021.
The appeal from the decision of Ierace J required leave, which was granted on 24 May 2021: Mohareb v Kelso [2021] NSWCA 103. The Court on that occasion was constituted by Macfarlan JA and me. Mr Mohareb had sought leave to appeal from the whole of the judgment of Ierace J. His Honour's judgment consisted of three orders. First, he dismissed Mr Mohareb's motion seeking review of orders made by the Registrar (dismissing the contempt motion and making a costs order in favour of John Kelso). Secondly, he ordered Mr Mohareb to pay John Kelso's costs of the motion before his Honour. Thirdly, he noted (in effect by way of declaration) that an amended summons filed by Mr Mohareb on 13 August 2020 seeking to continue the contempt action as against Alexander Kelso was taken to be dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).
We did not grant leave to appeal from the whole of the judgment. Leave to appeal was confined to the decisions that determined the fate of the contempt action against Alexander Kelso. That left standing the two costs orders in favour of John Kelso (the Registrar's order and the order made by Ierace J). The orders we made were as follows: "(1) Grant leave to Mr Mohareb to appeal in respect of the orders made by Ierace J on 16 October 2020, limited to the issues of whether Mr Mohareb's notice of motion of 1 February 2018 should have been dismissed by the Registrar and whether Mr Mohareb's Amended Summons filed on 13 August 2020 was taken to be dismissed by operation of the Vexatious Proceedings Act. (2) Otherwise dismiss Mr Mohareb's summons seeking leave to appeal. (3) Order that Mr Mohareb's and Mr Alexander Kelso's costs of the summons seeking leave to appeal be costs in the appeal. (4) Order that Mr Mohareb pay the costs of the other respondents to his summons seeking leave to appeal."
At the hearing of the leave application, Mr Mohareb had also made an application that I recuse myself, addressed in his submissions dated 20 May 2021 and orally on 21 May 2021. I refused that application for the reasons stated in my judgment on the leave application.
Although he was successful in obtaining a grant of leave to appeal concerning the contempt motion against Alexander Kelso, Mr Mohareb was unhappy with the confined terms of the leave granted. By amended notice of motion filed on 1 June 2021, he sought to have the orders made on 24 May 2021 varied so as to expand the grant of leave to the whole of the judgment of Ierace J. The amended motion also included a second application that I recuse myself, an application that Macfarlan JA recuse himself and an order that John Kelso pay the costs of the motion. That motion was addressed by Mr Mohareb in written submissions dated 15 June 2021.
John Kelso in turn sought a variation of the orders of 24 May 2021 under the slip rule, noting that order (1) did not make it clear that the leave granted by the Court was limited to the contempt action insofar as it concerned Alexander Kelso.
Macfarlan JA and I determined those further applications in a judgment published on 20 August 2021. We varied order (1) to address the issue correctly raised by John Kelso. As to Mr Mohareb's motion, we severally refused the recusal applications and jointly refused the application to vary the terms of the grant of leave: Mohareb v Kelso (No 2) [2021] NSWCA 182.
Mr Mohareb's motion filed on 31 August 2021 again seeks to reopen the scope of the leave granted. The motion includes a third application for me to recuse myself, a second application for Macfarlan JA to recuse himself and a reprise of the amended notice of motion filed on 1 June 2021. It also seeks an order that John Kelso pay the costs of the motion.
In support of the motion of 31 August 2021, Mr Mohareb provided lengthy written submissions dated 5 September 2021 which were filed electronically on the Sunday afternoon the day before the hearing of the substantive appeal. The submissions repeat and reiterate Mr Mohareb's previous contentions as to why he maintains Macfarlan JA and I should recuse ourselves. As to the application directed to me, I decline to do so for the reasons I have already stated in the previous judgments in this appeal.
As to the scope of the leave granted to appeal from the decision of Ierace J, the submissions of 5 September 2021 assert that our previous judgments were oblivious to the fact that there are good reasons to permit appellate challenge to the application to review the costs order made by the Registrar. I disagree. There is no good reason for expanding the scope of the leave to appeal to include the issues surrounding John Kelso's costs.
The determinations in respect of which leave was refused reflected a straightforward application of ordinary costs principles. The contempt motion filed by Mr Mohareb in the Court of Appeal on 1 February 2018 named seven respondents. That motion was remitted to the Common Law Division, still naming seven respondents. Upon his deciding not to proceed against six of the seven, it was Mr Mohareb's responsibility, and his alone, to regularise his proceedings. He had foreshadowed taking that step in correspondence but that did not obviate the need for the respondents to appear when the matter was before Court. The step Mr Mohareb had foreshadowed a number of times (most recently in an email to the court) remained to be formalised by him. Until that occurred, it was appropriate for any party to the motion to appear whenever the matter was before the court. Accordingly, the Registrar's order concerning John Kelso's costs made on the occasion on which the contempt motion was dismissed was appropriate.
Even if the contempt motion had not been dismissed, and Mr Mohareb had instead simply indicated that he did not move on order (3) in the motion (the order seeking damages against the second to seventh respondents), it would have followed inexorably that he would have been ordered to pay John Kelso's costs of facing the motion in the Common Law Division up to that point. Having appeared by a solicitor to see the action against him formally dismissed, John Kelso was plainly entitled to his costs of the proceedings in the Common Law Division after the motion had been remitted and until it was dismissed as against John Kelso. That is the usual result of commencing an action against a person and then discontinuing the action. Whatever the complexities of the intervening procedural steps, Mr Mohareb brought John Kelso to court and then changed his mind.
John Kelso was also plainly entitled to his costs of defending Mr Mohareb's unsuccessful application to Ierace J for review of the costs order made by the Registrar, reflected in order (2) made by Ierace J. That was a simple application of the usual rule that costs follow the event.
As noted at the outset of this judgment, Mr Mohareb has changed his mind again about suing the former respondents to the contempt motion for damages in negligence. He now states in his submissions dated 7 July 2021 that he wishes to "maintain and pursue" that claim as against John Kelso and Roderick Smith. At present, there is no action to "maintain"; his claims against those parties stand dismissed. That is the context in which the issues before this Court are to be determined.
For those reasons, I am of the view that the motion dated 31 August 2021 should be dismissed. John Kelso is again entitled to his costs. At the hearing of the appeal (which was also fixed as the return date of the motion, at Mr Mohareb's request), he appeared by a solicitor to oppose the relief sought to the extent that it concerned him. As the motion sought to challenge costs orders in his favour and also sought costs against him, the appearance was necessary to protect his interests. Accordingly, the orders I propose concerning the motion are: 1. that Mr Mohareb's notice of motion filed 31 August 2021 be dismissed. 2. that Mr Mohareb pay John Kelso's costs of the motion.

The fate of the contempt motion

The substantive appeal concerns the fate of Mr Mohareb's motion filed on 1 February 2018 seeking to have Alexander Kelso dealt with for contempt of court on the basis of the assault. That motion was filed in this Court. It was initially adjourned to abide the conclusion of the criminal proceedings against Alexander Kelso. The motion was ultimately relisted in mid-2020 and referred to Simpson AJA. Her Honour called upon Mr Mohareb to say why the notice of motion should not be remitted to the Common Law Division. After a hearing on that issue, her Honour made orders remitting the notice of motion to the Common Law Division and requiring Mr Mohareb to pay the costs of any of the respondents incurred by the notice of motion having been filed in this Court: Mohareb v Kelso [2020] NSWCA 105 at [23].
In the meantime, Mr Mohareb had been made subject to an order under s 8 of the Vexatious Proceedings Act 2008 (NSW) prohibiting him from instituting proceedings in New South Wales. That order was made by Fagan J on 7 August 2019 in proceedings brought by Mr Palmer: Palmer v Mohareb [2019] NSWSC 975. The order was in the following terms: "(2) The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any new proceeding against any person in New South Wales, this order not to affect the filing of any interlocutory process in proceedings that have been commenced at the date of this order or any appeal or application for leave to appeal from a decision in any such proceeding."
The contempt motion, having been filed in February 2018 (albeit in the wrong Court), was not affected by that order.
In her judgment remitting the contempt motion to the Common Law Division, Simpson AJA said at [22]: "The appropriate order is to take the course provided by s 51(2)(b) and remit [the] notice of motion to the Common Law Division of the Supreme Court for determination. 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."
Acknowledging that finding (contrary to the position now stated in his submissions dated 7 July 2021), Mr Mohareb wrote to the Common Law Registrar on 28 June 2020 indicating (among other things) that he did not press the relief sought against any respondent other than Alexander Kelso and accordingly that he did not have any objection to order (3) in the motion (the only relief sought against any respondent other than Alexander Kelso) being dismissed. In that email, Mr Mohareb provided a number of attachments including a "draft proposed summons" for filing in the Common Law Division which reflected that position in that the only named respondent was Alexander Kelso.
The contempt motion was listed for directions before a Registrar in the Common Law Division on 13 August 2020. The Registrar sought at that hearing to achieve at least two things. First, she sought to clarify the position of the parties other than Alexander Kelso. Secondly, she sought to formalise the originating process. The notice of motion when remitted had evidently been marked "summons" in the Registry. The Registrar confirmed that was the case and said: "I've certainly seen that reference from the Court that they wish for it to be created as a summons and, you know, tidied up if you are not planning on proceeding against the second to seventh respondents".
The solicitor representing John Kelso, Mr Prowse, noted that "any new document from Mr Mohareb would be in breach of the vexatious litigant order". The Registrar responded by noting that the notice of motion had been remitted to the Court and that it needed "to be tidied up". She said the next thing was to "get the motion put into a summons". Mr Prowse then sought confirmation that Mr Mohareb was unconditionally withdrawing the notice of motion filed in February 2018. That resulted in the following exchange: Mohareb: Okay, well I'm not withdrawing anything, it's the Court that ordered that the motion be filed as a summons. The motion has been remitted from the Court of Appeal to the Common Law Division and the Common Law Division decided and notified the parties that it was, in fact it was filed into the Common Law Division as a summons. I'm just following the Court directions. The substance of the action is the same - Registrar: The notice of Motion will no longer be relevant once this summons is filed, Mr Mohareb. Mohareb: Yes, that's correct. Registrar: So this will replace the motion. Applicant: That goes without saying. And also the draft summons has only got the first respondent, it hasn't got any of the second respondents onwards, and hasn't got the third - order number three that was on the motion. So it confirms what we've been saying so far."
There then followed an exchange between Mr Mohareb and the Registrar as to whether the Registry had already filed the notice of motion as a summons. The Registrar explained to Mr Mohareb that he would need to take that step. He expressed a concern as to whether he would be required to pay a filing fee. The Registrar responded by noting that, as this was "essentially an amendment of the previous pleading", no fee should be payable. For that reason, she said she would describe the document required to be filed by Mr Kelso as "an amended summons" which she thought would "do the trick".
Two things are very clear from those exchanges. The first is that the Registrar dismissed the notice of motion for good reason, namely, that Mr Mohareb had indicated he no longer sought to rely on it, either as to the relief sought against the second to seventh respondents (who were to be formally released from the proceedings) or as against Alexander Kelso (as to whom the relief sought in the contempt motion had been reframed in the draft proposed summons propounded by Mr Mohareb and sent to the court as an attachment to his email dated 28 June 2020). Secondly, it is clear that the Registrar allowed Mr Mohareb to file the amended summons as a continuation of the relief first sought by him against Alexander Kelso in February 2018, which was before Mr Mohareb became subject to the Vexatious Proceedings Act order.
The Registrar accordingly made three orders. First, she dismissed the remitted contempt motion. Secondly, she granted leave to Mr Mohareb to file and serve his draft proposed summons as an amended summons. Thirdly, she ordered Mr Mohareb to pay the costs of the only party to the contempt motion who had appeared with legal representation that day (John Kelso) described as the costs of "the notice of motion in relation to the Common Law Division".
Mr Mohareb applied for a review of orders (1) and (3). That was the application determined by Ierace J in the decision from which the present appeal is brought.
Ierace J rejected the challenge to the order dismissing the contempt motion. His Honour said at [12]-[13]: "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." (Emphasis in original).
The attempt before Ierace J to challenge order (1) made by the Registrar contradicted Mr Mohareb's acceptance, at the hearing before the Registrar, that the notice of motion would no longer be relevant once his summons was filed and that the summons would "replace the motion". Ierace J was, with respect, right to reject that aspect of the review application.
However, his Honour further held at [29] that the amended summons filed by Mr Mohareb pursuant to the leave granted by the Registrar "could not reasonably be considered to be a continuation of the same proceedings" and so was filed in contravention of the order of Fagan J under the Vexatious Proceedings Act.
Ierace J accordingly noted in the orders made on 16 October 2020 (in effect, by way of declaration): "(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)."
Incidentally, the order under the Vexatious Proceedings Act has since been set aside by this Court: Mohareb v Palmer (No 2) [2020] NSWCA 324. However, it was in force at the time that Ierace J determined the review application.
The primary judge's conclusion on that issue was inconsistent with the exchanges set out above, from which it is clear that the Registrar granted leave to file the amended summons because it was a continuation of the proceedings commenced by the contempt motion as against the only party against whom Mr Mohareb wished to proceed, Alexander Kelso.
Further, in my respectful opinion, his Honour erred in holding that the orders sought in the amended summons were so different from those sought in the notice of motion filed on 1 February 2018 as to be incapable of being considered to be a continuation of the same proceedings. His Honour considered that the only similarity between the orders sought in each document was a prayer that Alexander Kelso be dealt with for "criminal contempt of court": at [29]. In my opinion, that was enough to indicate that the action sought to be prosecuted by the amended summons was a continuation of the application wrongly filed in the Court of Appeal in 2018, the clear object of which was to have Alexander Kelso dealt with for an alleged contempt. Indeed, a comparison of the two sets of orders sought reveals that, with one exception, the amended summons did not expand the relief sought against Alexander Kelso but mostly reframed it, probably in response to remarks made by Simpson AJA in her Honour's judgment at [5].
The relief sought in the notice of motion filed in February 2018 was as follows: "1. That the First Respondent is punished for Criminal Contempt of Court, pursuant to Part 55, Division 3 of the Supreme Court Rules 1970 and to Section 326 of the Crimes Act 1900. 2. That the First Respondent is held liable for damages (both aggravated and punitive) caused to the Applicant as a result of his above-mentioned act of Criminal Contempt of Court. 3. That the Second, Third, Fourth, Fifth & Sixth Respondents are held liable in negligence for damages caused to the Applicant as a result of the First Respondent's above-mentioned act of Criminal Contempt of Court. 4. That the Friday 9th February 2018 hearing of the Applicant's leave application is adjourned until the hearing and determination of this Notice of Motion by the Court of Appeal."
The relief claimed in the amended summons filed on 13 August 2020 was 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 matter is referred to ODPP with a direction 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 matter is referred to the ODPP with a direction 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 offences. 7 The defendant to pay the plaintiff's costs."
As submitted by Mr Mohareb in his summary of argument dated 8 January 2021, there is a substantial measure of continuity in the primary relief sought. The first half of order (1) in the contempt motion is reflected in order (1) in the amended summons.
The second half of order (1) in the contempt motion is sought to be captured in an amended way in orders (4) and (5) in the amended summons. The amendments evidently seek to address the following remarks of Simpson AJA in her judgment remitting the contempt motion at [5]: "Section 326 of the Crimes Act may be put to one side. That section creates an indictable criminal offence, punishable by imprisonment for 10 years, of taking reprisals against any person on account of anything lawfully done by a person as a witness, juror or public justice official in or in connection with any judicial proceedings. It plainly does not provide any basis for the exercise of the powers of this Court or the Supreme Court on notice of motion. Any proceedings under s 326 must be commenced and pursued in accordance with established criminal procedures."
Orders (4) and (5) do not in fact overcome the difficulty identified in those remarks. The relief sought is misconceived. The same may be said of orders (2) and (3), which seek the same order in respect of a different alleged offence. That is a matter that can be addressed in the Common Law Division. The fact remains that the amended summons was plainly intended to clarify the relief sought against Alexander Kelso in the contempt motion.
Further, both processes sought an order that Alexander Kelso be: "held liable for damages (both aggravated and punitive) caused to [Mr Mohareb] as a result of his above-mentioned act of Criminal Contempt of Court".
In my view, the amended summons was filed as a continuation of proceedings commenced by Mr Mohareb prior to the making of the Vexatious Proceedings Act order, and accordingly did not amount to the institution of a "new" proceeding precluded by that order.
Mr Mohareb sought an order that the "respondents" pay his costs in this Court as well as his costs in the Court below. In light of the limited leave granted, the only respondent to the appeal proper is Alexander Kelso. As matters stand, no order has been made as between Mr Mohareb and Alexander Kelso concerning the costs of the contempt motion or the amended summons; neither the Registrar nor Ierace J made any such order. Mr Mohareb has been successful in reviving the amended summons but Alexander Kelso did not oppose that course; nor did he seek the order made by Ierace J which Mr Mohareb has been successful in having set aside. Indeed, he has not appeared in the proceedings since the contempt motion was remitted. In the circumstances, there should be no order as to cost as between Mr Mohareb and Alexander Kelso.
Since writing this judgment I have seen the additional remarks of Leeming JA. I agree with those remarks.
For those reasons, I propose the following orders: 1. Dismiss Mr Mohareb's notice of motion filed 31 August 2021. 2. Order Mr Mohareb to pay John Kelso's costs of that motion. 3. Appeal allowed in part. 4. Set aside the notation made by order (3) on 16 October 2020. 5. Note instead that the amended summons filed by Mr Mohareb on 13 August 2020 is not taken to have been dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)

Cited By (4)