By an amended notice of motion dated 10 December 2021, Nader Mohareb (the plaintiff) seeks orders which have been pleaded in the following terms:
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 of criminal matter number 2017/367888 of R v Alexander Edward Kelso of the Respondent's criminal proceeding relating to his 4 December 2017 attempted murder against the Applicant.
Leave to the Applicant to subpoena the ODPP file in ODPP matter/reference number 2017/17404, relating to the above mentioned criminal prosecution of the Respondent.
Leave to the Applicant to subpoena:
Copy of the NSW Police Force file for event number E65427309 & Charge No. H67872155, also relating to the above mentioned criminal prosecution of the Respondent.
Copy of NSW Police Force record containing the Respondent's contact details including his: Residential address, Work address, Mobile phone number(s), Residential Landline telephone number(s), Work Landline number(s) & Email address.
Leave to the Applicant to subpoena:
Copy of St Leonards Community Corrections Office file, relating to the criminal prosecution of sentencing of the Respondent, in District Court criminal matter number 2017/3678 of R v Alexander Edward Kelso.
Copy of St Leonards Community Corrections Office record containing the Respondent's contact details including his: Residential address, Work address, Mobile phone number(s), Residential Landline number(s), Work Landline number(s) and Email address.
That there be orders, as the court deems appropriate, pursuant to Clause (10), Division (3), Part (55) of the Supreme Court Rules 1970.
The Applicant's 25 February 2021 notice of motion - as per Annexure 'A' of the Applicant's supporting affidavit - in District Court criminal matter number 2019/00184274, is transferred to the Supreme Court to be consolidated with the present proceeding.
Leave to further amend that summons, as per:
The Proposed Draft Further Amended Summons in Annexure 'B' of the applicant's supporting affidavit; and
The Criminally Defamatory poster in Annexure 'C' of the applicant's supporting affidavit.
The notice of motion is supported by an affidavit of the plaintiff of 14 December 2021.
There was no appearance by or on behalf of the defendant when the notice of motion came before me for hearing.
[2]
THE FACTUAL BACKGROUND
The background to the present motion, and the nature of the orders sought by the plaintiff, are reflected in the following exchange which took place with the plaintiff in the course of the hearing: [1]
HIS HONOUR: All right. Could you just assist me with this, please. Can you explain to me how you say that Mr Kelso has committed a contempt?
PLAINTIFF: He in the course of the proceeding he he attempted to murder me. During the course of the proceeding he I'm alleging that he attempted to murder me to get rid of me so he could get rid of my proceeding against him.
HIS HONOUR: So when you say in the course of the proceedings, do you mean the proceedings in which Mr Kelso was prosecuted in the District Court?
PLAINTIFF: No. He was prosecuted in the District Court because of his attack on me but but his attack on me was was in the District Court, in the civil matters in the District Court, not the criminal matter.
HIS HONOUR: All right. Well, when you say in the course of the proceedings, just so that I can understand it, what proceedings are you referring to?
PLAINTIFF: District Court proceedings, civil matter before the District Court.
HIS HONOUR: So civil proceedings in the District Court in which Mr Kelso took action against you?
PLAINTIFF: Yes.
HIS HONOUR: Best to turn your phone off I think, Mr Mohareb.
PLAINTIFF: Yes. Yes.
HIS HONOUR: That way you won't get distracted.
All right. So there were proceedings in the District Court in which Mr Kelso took action against you, is that correct?
PLAINTIFF: Yes, that's correct, your Honour.
HIS HONOUR: And what was the nature of the action that he took, he wanted damages for what?
PLAINTIFF: No, no, I I was I I was the civil proceedings were against him on my
HIS HONOUR: I'm sorry, I had it the wrong way around. So you took proceedings against him in the District Court, over what?
PLAINTIFF: Well, he has been there's a long history
HIS HONOUR: I understand that, but just concentrate on the proceedings in the District Court that you took against him.
PLAINTIFF: Yes.
HIS HONOUR: What was the nature of the case that you brought against him?
PLAINTIFF: He trespassed to person and to property.
HIS HONOUR: Thank you. And what was the outcome of those proceedings?
PLAINTIFF: That well, because of because of circumstances the property the property, the damage to property was I wasn't ready and and it was dismissed because of lack of dispatch, I wasn't ready to go ahead with the with the with the with the hearing on the day and it was dismissed.
HIS HONOUR: All right.
PLAINTIFF: Yes.
HIS HONOUR: And when did that happen?
PLAINTIFF: That happened on
HIS HONOUR: Just the year will do.
PLAINTIFF: Yeah, it happened 2018.
HIS HONOUR: Thank you. And
PLAINTIFF: Late late 2018.
HIS HONOUR: All right then. And it was in those proceedings that you say Mr Kelso acted in contempt of court, is that correct?
PLAINTIFF: It was before before they were dismissed it was still ongoing, it was 2017 when this happened.
HIS HONOUR: Yes. I'm just trying to make sure I have all of the history correct. Your case is that Mr Kelso committed a contempt in the course of those proceedings?
PLAINTIFF: Yes, your Honour.
HIS HONOUR: All right. And the contempt you say he committed, just tell me that again?
PLAINTIFF: What exactly is your Honour asking me?
HIS HONOUR: What do you say was how did he commit a contempt?
PLAINTIFF: Well, late at night on 4th of December 2017 he he walked into my house and tried you know, attacked me with a with a with a metal baseball bat.
HIS HONOUR: All right.
PLAINTIFF: And and broke my jaw but the intention was to his intention was to to to to get rid of me physically completely to liquidate me.
HIS HONOUR: All right. Was he charged with any offence arising from that incident?
PLAINTIFF: Well, he was charged with with with assault with intent to to to to cause grievous bodily harm.
HIS HONOUR: And was that the charge that he was dealt with for which he was dealt in the District Court, was it?
PLAINTIFF: Yes.
HIS HONOUR: Right.
PLAINTIFF: Yes, yes, your Honour.
HIS HONOUR: All right. So against all of that background you want a number of orders. The first is access to a court file?
PLAINTIFF: Yes, your Honour.
HIS HONOUR: And just explain to me, that's the file in relation to the prosecution of Mr Kelso for assault, is it?
PLAINTIFF: That's correct. The file has been transferred to the Supreme Court and it's awaiting permission to access it.
HIS HONOUR: All right. You also want to subpoena the Director of Public Prosecutions for her file in relation to those proceedings as well, correct?
PLAINTIFF: That's correct, your Honour.
HIS HONOUR: All right. The third thing you want is you want leave to issue a subpoena to the police for their file?
PLAINTIFF: Yes.
HIS HONOUR: And you also want to include in that subpoena an order for the production of Mr Kelso's contact details?
PLAINTIFF: Well, that is in the alternative to Order 5. If Order 5 is is is allowed
HIS HONOUR: Yes.
PLAINTIFF: there would be no need for that Order 3(b).
HIS HONOUR: All right then. And in relation to 4, do I take it that the first thing you want is the file from Community Corrections, is that right?
PLAINTIFF: Yes, your Honour.
HIS HONOUR: And is that because Mr Kelso was given some form of supervised bond or something, was he?
PLAINTIFF: He was given a year and ten months intensive corrections order.
HIS HONOUR: Intensive corrections order, all right. And do I take it that 4(b) is also in the alternative and that depends on 5?
PLAINTIFF: That's right.
HIS HONOUR: All right.
PLAINTIFF: That's correct, your Honour, yes.
HIS HONOUR: All right. Number 6, Order 6, I'm not sure what you can you explain Order 6 to me? I don't quite understand it.
PLAINTIFF: That's a notice of motion in the District Court and it's attached it's attached to my affidavit.
HIS HONOUR: Yes.
PLAINTIFF: It's attached it's attached to to it's annexure B of my affidavit.
HIS HONOUR: Yes, I have that. That's a notice of motion in the District Court, yes.
PLAINTIFF: Yes. After after the attack and and in 2019 and during the course of the of the of the continuation of the of the civil proceedings there was an incident that happened. We were, me and him were before Acting Judge Curtis in the District Court.
HIS HONOUR: Oh, this is the incident when you were inspecting subpoenaed documents, is it?
PLAINTIFF: That's right, he alleged he and his wife alleged that I assaulted them and that I injured his wife and so on but, so that that those allegations are were false, so that's the notice of motion that that I started in the District Court. And and the magistrate who heard that that matter in the District Court is not available to hear that District Court, my notice of motion.
HIS HONOUR: All right, I understand that.
And then Order 7, you want leave to further amend your summons?
PLAINTIFF: Just yes, there's one one order. I've attached my my summons, the summons.
…
HIS HONOUR: So is this the essence of things, Mr Mohareb? What you are seeking to do is prosecute or have Mr Kelso prosecuted for contempt, is that correct?
PLAINTIFF: Criminal contempt, yes.
HIS HONOUR: Criminal contempt. And the criminal contempt is, you say, constituted by Mr Kelso acting as he did on 4 December by breaking into your house and attacking you?
PLAINTIFF: 2017, yes, your Honour.
HIS HONOUR: And you agree Mr Kelso was charged and he was dealt with for that in the District Court, correct?
PLAINTIFF: Not not for that. The fact that that there was a contempt component, that was not raised in the District Court.
HIS HONOUR: No, but he was charged with attacking you?
PLAINTIFF: Yes, for the physical attack but but but the the facts facts were really were completely watered down and it wasn't presented to the to the judge in the real severity and real seriousness, and that explains explains the order that
HIS HONOUR: All right. Mr Kelso pleaded guilty to that offence, didn't he?
PLAINTIFF: Yes.
HIS HONOUR: Yes. Well, how do you say that that is a contempt?
PLAINTIFF: Because I'm saying that his his purpose was to murder me so that he could get rid of me and of my proceedings, of my pursuit of him
HIS HONOUR: Oh, I see.
PLAINTIFF: because yes.
HIS HONOUR: So your case is, just so that I understand it, your case is that Mr Kelso attacked you as he did because he wanted to kill you and, therefore, get rid of the proceedings you had against him in the District Court, and in all of those circumstances your case is his actions amounted to a contempt and, therefore, you say he should be prosecuted for that contempt; that's your case, is it?
PLAINTIFF: That's correct, and there's there's other related orders in in the amended summons that
HIS HONOUR: Well, let's not worry about the amended summons at the moment because all I'm dealing with today is your notice of motion.
PLAINTIFF: Well, no, your Honour, the the the Court of Appeal reinstated the amended summons, not
HIS HONOUR: I understand that but that's for another day. What I'm dealing with today are the orders that you are seeking in your notice of motion.
PLAINTIFF: Oh, yes, your Honour.
HIS HONOUR: All right?
PLAINTIFF: I thought your Honour yes, yes.
HIS HONOUR: So the summons comes at another day. But my understanding of your case on the contempt is correct, is it, the one that I've just taken you through?
PLAINTIFF: That is correct, but I'm saying also that it's not only contempt, it's also attempt to pervert the course of justice and retaliation against a party in a proceeding, in a civil proceeding.
HIS HONOUR: All right.
PLAINTIFF: So there's other plus, plus the last, the last, the last order there in criminal defamation order in the in which I'm seeking to add that order of criminal defamation to the to the amended summons, that's in the notice of motion as well.
HIS HONOUR: Yes, all right.
PLAINTIFF: And Order 7, I'm seeking to add the order for criminal defamation.
HIS HONOUR: Yes, all right, I see that.
PLAINTIFF: And that's that's the that's the poster(?) that your Honour was asking me about in annexure D, that's the criminal contempt contempt. So there's a criminal contempt as well.
HIS HONOUR: Thank you.
PLAINTIFF: Criminal defamation.
HIS HONOUR: Thank you. All right.
In determining whether the orders sought by the plaintiff should be made, I have had some difficulty in ascertaining the cause of action he seeks to bring. That said, for the purposes of determining the amended motion, I am not required to determine whether any cause of action can ultimately be made out.
[3]
Order 1
The plaintiff seeks access to a District Court file which is said to be held in the Registry of this Court, relating to the criminal proceedings which were brought against the defendant. The terms of the order sought erroneously refer to the defendant being charged with the "attempted murder" of the plaintiff. However, the file is conceivably relevant to the plaintiff's apparent cause of action and in my view he should be granted access to it.
[4]
Order 2
Order 2 seeks leave to issue a subpoena to the NSW Director of Public Prosecutions for production of the file in relation to the defendant's prosecution. [2] The plaintiff's written submissions do not squarely address why the subpoena is sought to be issued. Notwithstanding that, I am prepared to accept that the material sought may be relevant.
For those reasons I propose to grant leave to the plaintiff to issue the subpoena.
[5]
Order 3
For the same reasons as those articulated in respect of order 2, the plaintiff should be granted leave to issue a subpoena to the NSW Police. However, I am not satisfied that there is any legitimate forensic purpose in seeking the production of material containing the defendant 's personal contact details.
[6]
Order 4
On the plaintiff's case, the contempt which was committed by the defendant is said to be constituted by the attack which resulted in the defendant being charged and sentenced to a Community Corrections Order. The defendant 's performance of his obligations under that Order obviously came after the events which are apparently relied upon by the plaintiff to constitute the contempt. Notwithstanding that, I am prepared to accept that the material sought may have some relevance and in those circumstances, I propose to grant the plaintiff leave to issue a subpoena. However, for the reasons previously stated I am not persuaded that there is any legitimate forensic purpose in the plaintiff seeking production of material containing the defendant's personal contact details.
[7]
Order 5
The plaintiff seeks an order pursuant to Part 55 r 10 of the Supreme Court Rules (NSW) which is in the following terms:
55.10 Arrest
Where -
(a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt, and
(b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court,
the Court may issue a warrant for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgment or order of the Court.
I am not persuaded that a warrant should be issued for the defendant 's arrest. In particular, and notwithstanding the fact that the defendant did not appear before me at the hearing of the of the present motion, there is no evidence that he is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court. As a result, one of the conditions precedent to the issue of a warrant is not satisfied.
[8]
Order 6
On 25 February 2021 the plaintiff filed a motion in the District Court seeking leave to (into alia) prosecute the defendant for attempting to pervert the course of justice, and for perjury. That motion also sought leave to bring similar proceedings against Vanessa Kelso. Ms Kelso is not a party to the proceedings which are before this Court. The plaintiff seeks an order that this motion be "transferred" to this Court and "consolidated" with the present proceeding.
The evidence before me provides no proper basis for the order which is sought. It is up to the plaintiff, if he wishes to do so, to bring a motion before this Court in these proceedings at some future time seeking appropriate orders.
[9]
Order 7
Order 7 seeks leave to allow the plaintiff to further amend his summons to (into alia) include a cause of action in defamation. Bearing in mind the necessity for all of the issues in dispute to be determined, an order granting leave to the plaintiff to amend his summons should be made.
[10]
ORDERS
For the foregoing reasons I make the following orders:
1. The plaintiff is granted access to District Court file number 2017/367888.
2. The plaintiff is granted leave to issue a subpoena to the Office of the Director of Public Prosecutions NSW for production of file reference number 2017/17404, noting that such subpoena is not to seek the production of any personal contact details of the defendant.
3. The plaintiff is granted leave to issue a subpoena to the Commissioner of Police NSW Police Force, for production of the file relating to Event number E65427309 and charge H6782155, noting that such subpoena is not to seek production of any personal contact details of the defendant.
4. The plaintiff is granted leave to issue a subpoena to Corrective Services NSW seeking production of the community corrections file relating to the defendant , noting that such subpoena is not to seek production of any personal contact details of the defendant .
5. Leave is granted to the plaintiff to file a further amended summons in the proceedings within a period of 21 days.
6. The costs of the plaintiff's amended notice of motion dated 10 December 2021 are reserved.
[11]
Endnotes
T2.23 - T8.38.
Uniform Civil Procedure Rules 2005 (NSW) r 7.3(1).
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Decision last updated: 07 February 2023