HIS HONOUR: By his amended statement of claim filed in this Court on 3 October 2018, Mr Mohareb makes a series of allegations against two defendants described respectively as "NSW Police Force/The State of New South Wales" and "Northern Beaches Council". The claim against the first defendant includes allegations that Mr Mohareb was defamed, and that aspect of the claim has been the subject of directions by McCallum J in the Defamation List. As far as I am able to determine, Mr Mohareb does not purport to frame any cause of action in defamation against the second defendant.
Mr Mohareb is also the plaintiff in a series of proceedings in the District Court of New South Wales. By his notice of motion filed in this Court on 9 October 2018, Mr Mohareb seeks the following orders with respect to those proceedings:
"1. That District Court proceedings in matters no.:
2015/201139 - N Mohareb v Alexander Edward Kelso (Defamation/Trespass)
2015/359339 - N Mohareb v Taylor Booth (Defamation/Trespass)
2016/292950 - N Mohareb v Taylor Booth (Defamation/Trespass)
2017/227427 - N Mohareb v Alexander Edward Kelso (Defamation/Trespass)
2017/227359 - N Mohareb v Saratoga Marine P/L & Five Others (Negligence)
are transferred from the District Court to the Supreme Court, pursuant to section 140 of the Civil Procedure Act 2005 and be consolidated with the present Supreme Court proceedings:
2018/221230 - N Mohareb v NSW Police Force/The State of NSW & Northern Beaches Local Council
or be tried at the same time or one immediately after another or that any of them be stayed until after the determination of any other of them, pursuant to Reg. 28.5 of the UCPR 2005,
2. In the alternative to Order 1, that the District Court matters, mentioned in Order 1, if and when they are transferred to the Supreme Court, be consolidated or be tried at the same time or one immediately after another or that any of them to be stayed until after the determination of any other of them, pursuant to Reg 28.5 of the UCPR 2005,
3. That the proceedings in the District Court of the matters, mentioned in Order (1), are temporarily stayed or adjourned, pending the determination of this Motion."
Section 140 of the Civil Procedure Act 2005 provides relevantly as follows:
"140 Transfer of proceedings to higher court
(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.
(2) …
(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:
(a) in the case of a motor accident claim or a workplace injury damages claim:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, or
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court, or
(ii) that there is other sufficient reason for hearing the proceedings in the Supreme Court.
(4) …"
In support of his application, Mr Mohareb relies upon two affidavits sworn by him on 12 October 2018 and 22 October 2018. The former affidavit annexes copies of the amended statements of claim in each of the five separate proceedings that are the subject of the present application. In the proceedings against Alexander Kelso, Mr Mohareb claims damages for trespass and assault including aggravated and punitive damages, as well as damages for defamation. In both proceedings against Taylor Booth, Mr Mohareb claims damages for defamation, trespass and assault. In the second proceedings against Alexander Kelso, Mr Mohareb claims damages for trespass, assault and defamation. Finally, in the proceedings against Saratoga Marine Pty Ltd and others, Mr Mohareb claims damages for trespass, assault and negligence.
In none of these amended statements of claim are the damages claimed quantified.
The latter affidavit includes a reference in terms to the fact that Registrar Bradford made orders on 17 October 2018 that Mr Mohareb provide evidence upon which he relied in support of the present application. That affidavit is voluminous, annexing as it does a very great deal of material including, but not limited to, the transcript of proceedings before Judicial Registrar Howard in the District Court on 9 August 2018 and a copy of his affidavit sworn 25 September 2018 in support of his application for an adjournment of all of the District Court proceedings. That application was apparently refused by Curtis ADCJ on 27 September 2018. Mr Mohareb informs me that his Honour's refusal is now, or will shortly be, the subject of a summons seeking leave to appeal to the Court of Appeal. A copy of the proposed summons is also annexed to Mr Mohareb's later affidavit.
The application is opposed by the defendants in the District Court proceedings. The defendants in the proceedings in this Court were ultimately more concerned about the viability of Mr Mohareb's pleadings following some preliminary concerns expressed by me about the form of the amended statement of claim.
Having reviewed Mr Mohareb's affidavits, I am unable to detect any material that satisfies the matters to which s 140 of the Civil Procedure Act is directed. There is absolutely no evidence that the amount that might be awarded to Mr Mohareb, if successful, is likely to exceed the jurisdictional limit of the District Court.
In support of the proposition that there is other sufficient reason for hearing the proceedings in this Court, Mr Mohareb made three principal submissions. The first was that, having regard to his significant history as a litigant in general, but in the District Court in particular, it will not be possible for him to receive a fair trial in that Court. If I correctly understand that submission, Mr Mohareb is concerned that some judges before whom he has appeared in the District Court are less than favourably disposed to him, although Mr Mohareb has not provided me with examples of how that concern has been generated in fact. Clearly if Mr Mohareb were able to establish the existence of some actual or apprehended bias on the part of a judge or judges in the District Court, he could pursue any appropriate application in that respect as and when the need arises in that Court. I do not consider that Mr Mohareb's unelaborated concerns warrant the removal of the nominated proceedings as a group to this Court.
Secondly, Mr Mohareb contends that the circumstances that give rise to all of the proceedings in the District Court arise out of similar facts to the proceedings in this Court. While that may be a matter going to the consolidation of the several District Court proceedings in that Court, about the accuracy of which suggestion I am presently unable to comment, it does not seem to me to provide a sufficient reason for hearing the proceedings in this Court. Moreover, doing the best I can, there does not seem to me to be a sufficient degree of similarity between the District Court proceedings and the present proceedings to support the submission that they all arise out of the same or similar circumstances and should therefore all be heard together. In that last respect, I note that neither of the defendants in this Court is a defendant in any of the District Court proceedings and, subject to what appears below, arguably raise issues that are quite different and distinct.
Thirdly, Mr Mohareb suggested that her Honour McCallum J had a particular familiarity with his matters and would be more knowledgeable of the underlying facts and circumstances than any judge in the District Court. Whether or not that contention is correct, there is no guarantee that the hearing of this or any matters will be allocated to her Honour in due course. I am not otherwise satisfied that it supports the present application.
There is also the additional question of the viability of the amended statement of claim in this Court. Without expressing a concluded view about it, and subject always to hearing the attitude of the parties, there is considerable scope for arguing that the document fails to disclose a cause of action or is otherwise amenable to attack having regard to its present form. For example, the document is long, discursive, prolix and difficult to categorise. The present application to remove the District Court proceedings to this Court and to consolidate them with the present proceedings ought not in my view to be finally considered or determined until such time as it is clear that Mr Mohareb's pleadings are in a proper form and not vulnerable to the prospect of an application to strike them out or otherwise being dealt with summarily.
Mr Mohareb has indicated that he would like an opportunity to review his amended statement of claim. The defendants do not oppose him being given an opportunity to do so. McCallum J granted leave to Mr Mohareb on 7 September 2018 to serve any amended statement of claim within four weeks of that date. He did so. However, as will be apparent, I consider that there are deficiencies in the amended statement of claim that require further attention. I consider that it is preferable that no further step be taken to advance the proceedings, and in particular the defamation aspect of the matter, until such time as Mr Mohareb clarifies his causes of action, especially the question of whether or not the second defendant is alleged to have defamed him.
Accordingly I propose to make the following orders:
1. Grant leave to the plaintiff further to amend his amended statement of claim by no later than 8 February 2019.
2. Stand over the proceedings before the Registrar on 11 February 2019 for directions.
3. Make no order on the plaintiff's notice of motion filed 9 October 2018.
4. Reserve the costs of and incidental to the plaintiff's notice of motion filed 9 October 2018, including the costs of 22 October 2018.
5. Grant liberty to the parties to apply on 7 days' notice.
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Decision last updated: 23 October 2018