Solicitors:
Crown Solicitors Officer (State of New South Wales)
Moray & Agnew (Northern Beaches Council)
File Number(s): 2020/174984
[2]
JUDGMENT
By notice of motion filed in these proceedings on 14 November 2022, the plaintiff, Mr Mohareb seeks the following orders:
(1) "That District Court matter no. 2018/00221230 (Mohareb v State of NSW & Northern Beaches Council), along with District Court matters nos. 2015/201139 (Mohareb v Kelso) and 2016/292950 (Mohareb v Booth), which - pursuant to Abadee DCJ's 14 May 2021 order - were consolidated with the above-mentioned District Court matter no. 2018/0022123 (Mohareb v State of NSW and Northern Beaches Council) are transferred to the Supreme Court; and
(2) That, upon their transfer to the Supreme Court, the matters enumerated in Order (1) above, are consolidated with and be tried at the same time as or immediately before or after the present Supreme Court matter no. 2020/00174984 (Mohareb v Kelso).
(3) In the alternative to Orders (1) & (2) above: That the present Supreme Court matter no 2020/00174984 (Mohareb v Kelso) is transferred to the District Court and that upon its transfer, it be consolidated with and be tried at the same time as or immediately before or after the District Court matters enumerated in Orders (1) & (2) above.
(4) That the District Court matters, enumerated in Orders (1) & (2) above, are adjourned or temporarily stayed until the present application is heard & determined."
I understand that an order to the same effect as prayer 4 has been made in the District Court. Certainly, it was not pressed before me. The District Court matters seem to be in abeyance pending the outcome of this application.
Proceedings number 2020/00174984, pending in this Court, are maintained by the further amended summons filed on 17 February 2023 ("FAS") pursuant to leave granted by Bellew J on 7 February 2023 (Morhareb v Kelso [2023] NSWSC 20). No contradictor appeared to contest that application. Like all of the proceedings with which this application is concerned, they have enjoyed a somewhat complicated history, which it is unnecessary to recount in full. The FAS contain 24 prayers for relief. The central prayer is prayer 9 charging the first defendant, Mr Kelso, with contempt of court. The original summons contained a detailed statement of charge which does not appear to have been reiterated in the FAS, at least in the form in which it appears in the Court Book (Tab 3, p 188ff). Prayer 24 is concerned with costs, otherwise prayers 1 to 8 seek leave to prosecute Mr Kelso for various, mainly indicatable, offences or in the alternative what can only be described as an order in the nature of mandamus directed to the Director of Public Prosecutions ("DPP") (for the Attorney General of NSW), commanding the bringing of criminal proceedings for the prosecution of the alleged offences. Prayers 10 to 15, which in substance appeared in the original summons, are concerned with relief of the same nature. Prayers 16 to 23 seek leave for Mr Mohareb to prosecute Mr Kelso and his wife for yet other offences in the nature of public justice offences, mainly alleging perjury and other false statements. Again, as an alternative to every application for leave to bring a private prosecution for these matters, an order in the nature of mandamus purporting to command the bringing of a prosecution is sought against the DPP and the Attorney General.
I should say at once the question of the competence of the FAS and the contempt of court proceedings as reconstituted by it was not argued before me. Neither the DPP nor the Attorney General sought to appear before me. Neither appears to have been named or added as a party; neither appear to have been served with the FAS or the application to transfer. Although served with the application to transfer I am required to determine, neither Mr Kelso nor his wife chose to appear.
The question of the competence, or perhaps appropriateness, of all of the relief sought in the FAS may have to be addressed on another occasion when there is an active contradictor. Observations about these matters have been made at various times when the matter has been before the Court of Appeal: Mohareb v Kelso [2020] NSWCA 105 at [5] (Simpson AJA); and Mohareb v Kelso (No 3) [2021] NSWCA 213 at [4]-[6] (Leeming JA) and at [49]-[50] and [54] (McCallum JA) (as her Honour then was).
[3]
Contempt of court charge and background
The central charge in the proceedings already pending in this Court, as I have said, is the contempt of court charge. It relates to events which occurred on 4 December 2017 resulting in Mr Kelso being charged, inter alia, for the offence of causing grievous bodily harm to Mr Mohareb with intent contrary to s 33(1)m Crimes Act 1900 (NSW). Ultimately Mr Kelso pleaded guilty to that charge and was sentenced for it by his Honour Judge Norrish KC on 17 April 2020 to a term of imprisonment of 1 year and 10 months duration to be served in the community by way of an Intensive Correction Order which included the obligation to perform 400 hours of community service.
The offending occurred around 9 pm on a day during which Mr Mohareb and Mr Kelso had been in the District Court in relation to the 2015 proceedings, I infer. Mr Kelso was intoxicated and angry. He sought out Mr Mohareb. He was then carrying a baseball bat which he said, and the learned sentencing judge accepted (R v Kelso [2020] NSWDC 157 at [18]), he had with him for the protection of his dog, "just in case". When he came upon Mr Mohareb in or about his own home, Mr Kelso struck him several times about his head and body. According to the sentencing judge's findings, in "a prodigious feat of strength and courage" (at [20]), Mr Mohareb was able to disarm and overpower Mr Kelso. Mr Mohareb was admitted to the Royal North Shore Hospital requiring surgery for the fixation of a broken jaw and intubation in ICU for a period of time. The possible crossover between the particulars of the contempt charge and the offence created by s 326 Crimes Act relating to "reprisals" against witnesses, jurors and others in any judicial proceeding is apparent; so too is the potential for double jeopardy given the s 33(1) conviction as Leeming JA observed in Mohareb v Kelso (No 3)
The serious assault upon Mr Mohareb, on his case, was the culmination of a large number of events borne of what appears to be strong animosity between Mr Kelso and others, on the one hand, and Mr Mohareb, on the other. This whole series of events is the factual matrix from which each of the three sets of proceedings, the subject of the application for transfer from the District Court arise.
[4]
The active parties
From what I was told by the parties, it appears that Mr Kelso, his wife and Mr Booth (the defendant in the 2016 proceedings), have long since ceased to undertake any active part in any of the proceedings. In accordance with convention the name of each of them was called three times outside the courtroom but there was no appearance.
The active contradictors in relation to the transfer application are the State of New South Wales ("State"), represented by Mr AN Williams of counsel and the Northern Beaches Council ("Council") represented by Mr J Guihot of counsel. They are the remaining active parties in the 2018 proceedings. Counsel each opposed the application.
[5]
The proceedings sought to be transferred
It is not necessary for me to delve further into the complicated history of the proceedings. They have given rise to many disputes which it has been necessary to resolve by judicial determination in the District Court, the Court of Appeal, and to a lesser extent in the Common Law Division of this Court. Having said that, neither of the 2015 or 2016 proceedings, were originally commenced in the Supreme Court. They were commenced in the District Court. The 2018 proceedings were commenced in this Court and then transferred to the District Court pursuant to s 146(1) Civil Procedure Act 2005 (NSW) ("CPA") on 15 March 2019: Mohareb v State of New South Wales [2019] NSWSC 270 (Hoeben CJ at CL). It is important to record that both Mr Williams and Mr Guihot accept that an effect of this order is that by force of s 149 CPA the District Court is seized of the full jurisdiction of this Court including authority to award unlimited damages. The proceedings have been case managed in the District Court since their transfer.
[6]
Grounds for relief sought
In support of his notice of motion filed on 14 November 2022, Mr Mohareb read an affidavit affirmed on the same date annexing the extant amended statement of claim in each of the 2018, 2015 and 2016 proceedings in the District Court and the transcript of proceedings before his Honour Judge Abadee in the District Court on 29 April 2021. He also read what he entitled his primary affidavit affirmed on 2 February 2023. This affidavit runs to approximately 99 pages. It is partly evidence and partly written submission providing a detailed narrative of what might be referred to as the whole history of the factual matrix commencing in 2013 of the cause and origin of his proceedings in the District Court and in this Court. It is by the primary affidavit that Mr Mohareb seeks to make good his grounds for the transfer of the proceedings. Mr Mohareb did not read his supplementary affidavit of 3 February 2023.
The State relied upon the affidavit of its solicitor, Richard Kelly of 28 February 2023 and the Council relied upon the affidavit of its solicitor, Mark James Brothers of 28 February 2023.
It was not necessary for me to consider the 1,640 pages of material included in the Court Book. With respect to the parties, it was mostly not material to the limited question I was asked to determine which was whether each of the proceedings in the District Court should be transferred to this Court in accordance with the provisions of s 140 CPA. From his written submissions in chief of 6 February 2023, it is clear that Mr Mohareb relies upon the following grounds:
1. that each of the proceedings in the District Court arises out of the same set of circumstances as the contempt proceedings in this Court for the purpose of r 28.5 Uniform Civil Procedure Rules 2005 (NSW) and it would be efficient in the interests of the administration of justice proceedings to consolidate the proceedings. Mr Mohareb elaborated on that consideration in some detail;
2. from a consideration of the matters set out in detail in his primary affidavit, Mr Mohareb relied upon "the bias and hostility with which [he] and [his] matters were dealt with in the District Court". He referred to the conduct of to four judges or former judges of the Court and a senior quasi-judicial official. He also referred to other persons in the media, in politics, in the police force and working for the Council. Obviously, none of this group have any duty to act judicially;
3. he challenged the correctness of Hoeben CJ at CL's decision ([2019] NSWSC 27) of 15 March 2019 transferring the 2018 proceedings to the District Court by reference to the analyses of his claim by Judge Wass SC and Judge Abadee before each of whom he successfully resisted a summary dismissal application;
4. he relied upon a body of extra-curial judicial writing dealing with the disadvantages and difficulties faced by self-represented litigants in negotiating the legal system;
5. by reference to Spedding v State of New South Wales [2022] NSWSC 1627 (Harrison J) he argued for the purpose of s 140(3)(a) that an award of damages in his case would likely exceed the District Court's jurisdictional limit.
[7]
Resolution
As I have said, the proceedings in this Court are for criminal contempt. The factual premise on which they proceed is beyond the jurisdiction of the District Court conferred by Part 7, s 199 District Court Act 1973 (NSW). Each of the proceedings pending the District Court are civil proceedings in which Mr Morhareb claims damages for personal injury and also for defamation in the 2015 and 2016 proceedings. There is no claim for damages for defamation in the 2018 proceedings. The claim for damages for personal injury in each set of proceedings is based upon the cause of action for the intentional infliction of harm usually associated with Wilkinson v Downton [1897] 2 QB 57. As against the State and Council in the 2018 proceedings, Mr Mohareb also relies upon an allegation of breach of each public authority's duty of care recognised by the law of negligence.
It is quite obvious that there are no procedural advantages to be gained by transferring the civil proceedings to this Court, even if in a general sense, they may have a common matrix of fact: New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 at pp 182- 183 (Kirby P); p 198 (Hope JA); and pp199-201 (Mahoney JA). In my judgment this case firmly establishes that it is impermissible to join contempt proceedings with other proceedings whether civil or criminal. The main purpose of this rule is to protect the integrity of the proceedings for contempt which are "criminal in nature". Kirby P said (at p 183):
"However, for two reasons it is desirable that the integrity of the
proceeding, criminal in nature, should be maintained. Each is a reason of
principle. The first is the danger of confusion between the onus, rules of
evidence and of procedure which apply in the respective claims if they are
considered together. The second is the undesirability of providing injunctive
relief against an alleged risk of the future commission of what would be an
offence criminal in nature and dealing with that matter in the same
proceeding as a prosecution of such offences which are already alleged to
have occurred. Even if contempt proceedings are not strictly criminal but
merely criminal in nature and the joinder of the proceeding here would not
involve a clear abuse of process and oppression which was described in
Wentworth v Rogers [Court of Appeal, 22 July 1987, unreported] I consider that the Court should require the severance of the contempt proceedings from the other relief claimed."
It is true, as Mr Mohareb pointed out (at p 183G) Kirby P also said it is "sufficient that the Court should order that the claim for injunctive relief be heard separately and after the determination of the claims of contempt". Mr Mohareb argued the same could occur here. However, I can see no advantage in that approach in this particular case. Mainly because the proceedings have not previously been joined together and it is not necessary to sever or separate them to avoid an abuse of process. And given the protections afforded to the person against whom the proceedings, "criminal in nature", are brought, it would not be, in my judgment, appropriate that the hearing of the civil proceedings, if transferred to this court, be assigned to the same judge hearing the contempt proceedings to commence directly after the conclusion of the contempt proceedings, given the significant risk of the appearance of pre-judgment arising. In my judgment, the contempt proceedings should continue to proceed separately. I would reject this ground.
It is convenient to take the natural justice ground and self-litigant ground together. They are clearly interconnected. There are a number of reasons why it is inappropriate for this ground, or these grounds, if they are separate, to be propounded in the context of an application for a transfer of proceedings to the Supreme Court. First, It is not appropriate for me as a first instance judge to sit in judgment of whether another first instance judge of a different court has failed to afford Mr Mohareb natural justice in application of either the impartiality rule or the hearing rule. As I understand the various judgments of the Justices of the High Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, that question is, in the first instance any way, a question for the judge involved as a matter both of judicial ethics and legal obligation. If a first instance judge makes such an error, the matter is reviewable only by a court to whom an appeal lies or in which the relevant supervisory jurisdiction is reposed. Here, when one considers the position of a judge of the District Court, only the Court of Appeal may exercise those powers.
Secondly, I am not satisfied, even if I had such power, that Mr Mohareb's subjective assessment is sufficient to justify a finding, were it open to me, of bias or a failure to afford a fair hearing. It is well established in Australian jurisprudence that the test is an objective one: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. Finally, even were it open to me, and were Mr Mohareb able to demonstrate that one or other or all of the named judges had failed to afford him procedural fairness on one occasion or another, that circumstance would not taint the whole of the District Court with a lack of jurisdiction. There are many judges of the District Court and questions of procedural fairness may only be dealt with on a case-by-case basis. I do not regard it as necessary to remove the proceedings into this court to afford Mr Mohareb procedural fairness.
I am not of the view that anything said by either Judge Abadee or Judge Wass SC about the nature or complexity of Mr Mohareb's case as propounded in the 2015, 2016 or 2018 proceedings is capable of suggesting that Hoeben CJ at CL's decision to transfer the 2018 matter to the District Court was erroneous or that his Honour's discretion in that regard miscarried. Moreover, Hoeben CJ at CL's decision cannot be impugned or called into question either before a judge of the District Court or another judge of the Common Law Division. His Honour's decision made as long ago as 17 March 2019 could only have been called into question in the Court of Appeal and that step was not taken by Mr Mohareb at the relevant time. It is impermissible, and indeed an abuse of process, to make a collateral attack on a first instance decision by asking another first instance judge to reverse its legal effect. I would reject this ground.
I turn then to the s 140(3)(b) ground. There is simply no evidence from which I could infer, even as a matter of impression at an appropriately low level of persuasion for an interlocutory application, that the amount to be awarded to Mr Mohareb in respect of any causes of action sued upon by him in the 2015, 2016 or 2018 proceedings is likely to exceed the applicable jurisdictional limit of the District Court in respect of those proceedings, viz $750,000: s 4, s 183D and Scd 3 Pt 11 cl 15 District Court Act 1973 (NSW). So far as the 2018 proceedings are concerned, I am not of the view that Mr Mohareb derives any support from Harrison J's decision in Spedding v State of New South Wales. His Honour's assessment of quantum of damages in that case involved questions of fact only and have, with respect, no precedential value for Mr Mohareb's case or any other case. Moreover, as the 2018 proceedings were transferred to the District Court from the Supreme Court, under s 146 CPA, the District Court is in fact seissed of all jurisdiction of the Supreme Court to determine any question arising in those proceedings including unlimited jurisdiction as to the quantum of damages.
Finally, there is one matter of detail. Mr Mohareb has characterised Judge Abadee's orders of 14 May 2021 as a consolidation. This appears not to be strictly or technically correct. It is accurate to say that in Mohareb v State of New South Wales [2021] NSWDC 177 (at [184]), his Honour made the following order in the 2018 proceedings:
"The proceedings numbered 2015…and 2016…. Are to be tried immediately after the trial of this proceeding, and by the same trial judge."
This is not for legal purposes a consolidation. Rather, his Honour while expressing himself as acceding to Mr Mohareb's application adopted the option available to him from the express language of r 28.5 UCPR that "the proceedings …be tried…one immediately after another…" However, nothing turns on this for present purposes and Mr Mohareb made it clear he would have been content for an order to be made to the same effect in this Court, had his application for a transfer been successful.
[8]
Orders
In the event, Mr Mohareb's application for transfer has not been successful and I make the following orders:
1. The plaintiff's notice of motion of 14 November 2022 is dismissed.
2. The plaintiff is to pay the costs of the State of New South Wales and the Northern Beaches Council.
[9]
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Decision last updated: 14 July 2023