Mohareb v Manly Local Court

Court of Appeal (NSW)|2024-09-23|Before: Gleeson JA, Button J

Background

The background to the application is as follows. In his summary of argument dated 27 May 2024, Mr Mohareb sought a concurrent hearing of his application for leave to appeal and argument on the appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.12(4)(g).
On 5 August 2024 there was a directions hearing before the Registrar. The Registrar informed the parties that the President had determined that the application for leave be listed for a "leave alone" hearing and made a direction listing the matter for hearing (leave only) on 26 September 2024.
By amended notice of motion filed 20 September 2024 Mr Mohareb seeks to vary the determination of the President that there be a leave only hearing. Instead, he seeks an order that the amended summons be listed either as an appeal "as of right", or alternatively, for a concurrent hearing. That application is stated to made under UCPR, rr 36.15, 36.16 or 36.17. In oral argument, Mr Mohareb sought a review of the "administrative decision" of the President that the leave application be listed for a leave only matter.
Mr Mohareb also seeks an order vacating the hearing listed on 26 September 2024 on the ground that the Court has not yet determined the first aspect of his amended notice of motion.
The second respondent opposed both applications.

Application to vacate the hearing

Given that the Court has dealt with the first aspect of Mr Mohareb's motion, there is no basis for vacating the hearing on 26 September 2024 on the ground that par [1] of the motion has not been determined.
Turning to the second aspect of Mr Mohareb's application to vacate the hearing, Mr Mohareb said that he needs more time to prepare given the late service of the second respondent's response. He is correct that the response served last Friday 20 September 2024 was late. However, he has not articulated how anything in the response took him by surprise, or why that the short point responses by the second respondent give rise to any difficulty in dealing with the response at the hearing listed for this Thursday. Those short points cover the same matters that were in issue before Button J concerning Mr Mohareb's challenge to the Magistrate's decision refusing to issue the subpoenas on the ground that either subpoena, as then framed, was not for a legitimate forensic purpose and was too broad.
In the circumstances, including taking into account that Mr Mohareb is self-represented, I am satisfied that the application to vacate the hearing on 26 September 2024 should be refused.

Other matters

One procedural matter should be noted. The first respondent indicated in its response that it will seek a direction at the hearing that the name of the first respondent in the court's records concerning this matter be amended to "Local Court of New South Wales". Such a direction is appropriate, however when this issue was raised by the Court during the hearing, the first respondent indicated that it was content for the matter to be dealt with at the leave only hearing.

Orders

Both applications have failed. There is no reason why costs should not follow the event (UCPR, r 42.1), however the first respondent does not seek an order for costs.
Accordingly, the Court makes the following orders: 1. The applicant's amended notice of motion filed 20 September 2024 is dismissed. 2. The applicant to pay the second respondent's costs of the amended motion.

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: 23 September 2024

Solicitors: Nader Mohareb (Applicant / Self-represented) Crown Solicitor's Office (First respondent) Makinson d'Apice (Second respondent) File Number(s): 2024/163221 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Civil Citation: [2024] NSWSC 345 Date of Decision: 5 April 2024 Before: Button J File Number(s): 2022/242042

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)

Cited By (2)