Mohareb v State of New South Wales

Judgment

1. THE COURT: Mr Nader Mohareb seeks leave to appeal from aspects of two interlocutory decisions of the District Court. The first followed a two day procedural hearing, concerning joinder of new parties (the third respondent Dr Michael Bowler and the fourth respondent Nine Entertainment Co Holdings Ltd or "Nine"), amendments to and the striking out of parts of Mr Mohareb's existing claim against the State (the first respondent) and the Council (the second respondent) and consequential costs orders: Mohareb v State of New South Wales & Ors [2021] NSWDC 177. The second followed Mr Mohareb's application to re-open the first decision pursuant to Pt 36 of the Uniform Civil Procedure Rules 2005 (NSW), and was determined on the papers: Mohareb v State of New South Wales & Ors (No. 2) [2021] NSWDC 215. Leave is required pursuant to s 127(2)(a) of the District Court Act 1973 (NSW), all the decisions being interlocutory.
2. Mr Mohareb is, and at all relevant times has been, unrepresented. He is also an undischarged bankrupt, and this is relevant to one aspect of his complaint. He continues to be the subject of an order under the Vexatious Proceedings Act 2008 (NSW), but following this Court's decision in Mohareb v Palmer (No 2) [2020] NSWCA 324 a wider order under that statute has been set aside, and that statute does not impact upon this application, save insofar as part of his claim against Nine is based on publications concerning Mr Mohareb and applications under that statute.
3. Mr Mohareb has supplied more than 1500 pages of material in support of his application. His proposed notice of appeal contains 86 grounds. His submissions in chief comply with the 10 page limit in the rules, but he was granted leave to supply submissions in reply, and he has done so separately in relation to each respondent, resulting in some 56 pages purportedly in reply. The form of the proposed pleading which was the subject of the hearing in the District Court was 55 pages with more than 250 pages of annexures.
4. In light of his detailed submissions, Mr Mohareb chose not to address the Court in chief in support of the grant of leave. Each of the counsel for the respondents (who had also supplied written submissions) addressed the Court succinctly, occupying some 25 minutes. Mr Mohareb then addressed the Court in reply for around an hour. We called upon Mr Guihot for the Council to address further one point to which Mr Mohareb had given prominence, and after hearing from him, we heard further from Mr Mohareb, following which we reserved our decision.
5. The claims which Mr Mohareb wishes to propound derive principally although not exclusively from an assault suffered by him in December 2017. He maintains that a former neighbour, Mr Alexander Kelso, attempted to murder him. There is no doubt that he was assaulted by Mr Kelso, who ultimately pleaded guilty to an offence of causing grievous bodily harm with intent to do so and was sentenced for that offence in the District Court: R v Kelso [2020] NSWDC 157. Parts of the claim against the State turn on what he says was deficient medical treatment following that assault, and his proposed claim against Dr Bowler (summarised in more detail below) concerns one aspect of this. The proposed claim against Nine relates to publications concerning him, including in relation to Mr Kelso and others in the community opposed to Mr Mohareb, but going beyond the assault and extending to earlier acrimony. It will not be necessary to summarise them.
6. The current proceeding was commenced in this Court in July 2018 and transferred to the District Court in March 2019. There have been some amendments and many iterations of proposed amendments since the proceeding was commenced. An Amended Statement of Claim was filed in the Supreme Court in October 2018. Mr Mohareb produced a "Draft Proposed Further Amended Statement of Claim" in March 2020. Before 23 July 2020, a "Proposed Further Amended Statement of Claim" was produced, which was the subject of some argument before Wass DCJ on that day. In early October 2020, her Honour made various orders and directions in relation to that proposed pleading, and granted leave to Mr Mohareb to file a Further Amended Statement of Claim "in accordance with these orders". No pleading was filed pursuant to that leave. Furthermore, on 4 December 2020, Wass DCJ made directions for the filing by the State and Nine of applications to dismiss the proceedings. Those applications, and written submissions in support of them, were filed on 11 December 2020, and before they were heard, Mr Mohareb served another version of his proposed Further Amended Statement of Claim, referred to as the "Strikethrough PFASOC".
7. Against this background, the primary judge (Abadee DCJ) had three motions before him. One was the Council's motion to dismiss the whole of the proceeding, including on the basis that Mr Mohareb was an undischarged bankrupt whose trustee had elected to discontinue the proceeding, subject only to s 60(4) of the Bankruptcy Act 1966 (Cth). A second was the State's motion to strike out parts of an earlier version of the proposed pleading, including on the basis that Mr Mohareb was precluded from prosecuting claims for property damage, or claims for personal injury that were inseverable from interference with his property rights. Both of those motions had been filed in December 2020. Each was eventually set down for a hearing of one day on 29 April 2021. By his notice of motion filed on 19 April 2021, Mr Mohareb sought leave to amend his existing pleading in accordance with a "Draft Proposed Further Amended Statement of Claim" which was attached to his affidavit of 22 April 2021. That draft pleading sought to join Dr Bowler and Nine. It also included some changes to the allegations proposed to be made against the existing defendants. One to which attention was drawn during submissions in this Court was paragraph 58 which was sought to be amended as marked below: "58. The aforementioned criminal acts against the plaintiff and his property and the resulting hurt to feelings, fear, humiliation, affront to dignity, mental trauma, loss, damage and destruction of the plaintiff's property, were occasioned by the negligence and/or breach of duty on the part of the second defendant ..."
8. It may be inferred that Mr Mohareb was concerned to extend his pleaded case to include claims falling within the exception in s 60(4) of the Bankruptcy Act for claims commenced by a person before he or she became a bankrupt in respect of "any personal injury or wrong done to the bankrupt".
9. The hearing occupied the majority of two full days. Most of the first day was directed to the joinder of Dr Bowler and Nine, whose lawyers were then excused from attendance. The transcript of both days combined occupies 153 pages. A crude measure of the time given to the various parties is that some 66 pages contain addresses by the counsel or solicitor appearing for the first, second, third or fourth respondents. The large majority of transcript is occupied by exchanges between Mr Mohareb and the primary judge.
10. There is little utility in summarising in this judgment the reasons given by the primary judge (which are available in their entirety on CaseLaw). The primary judge dismissed the Council's motion for dismissal of the proceedings against it, based in part on the operation of the Bankruptcy Act, and the Council does not seek leave to appeal from that order. His Honour also dismissed Mr Mohareb's application for leave to join Dr Bowler and Nine, but granted leave to Mr Mohareb to amend his pleading subject to the striking out of certain paragraphs. Mr Mohareb seeks leave to appeal from those decisions. His Honour also ordered that Mr Mohareb pay the State's and the Council's costs of the motion for leave to amend, although his Honour was conscious that enforcing that order was apt to be problematic. Mr Mohareb maintains, vehemently, that the costs order should be set aside. Finally and overarchingly, Mr Mohareb complains that he was not accorded procedural fairness in the way the hearing was conducted.
11. Subject to minor variations, his Honour declined to alter the gravamen of his orders in a second judgment following Mr Mohareb's application to reopen. Although proposed grounds 57-86 are directed to this judgment, it was not mentioned by any party in oral submissions, and does not give rise to any separate basis for a grant of leave.
12. As we have already noted, Mr Mohareb does not have a right of appeal. Parliament requires that he obtain leave because despite the time and cost (both public and private) which have been directed to the motions, they are merely interlocutory motions rather than decisions following a final hearing.
13. Our reasons for refusing leave may be stated much more concisely than the parties' submissions in support of or opposing leave. We deal with the four main issues identified above, which reflect the way the oral hearing proceeded.

The amendments to the claims against the State and the Council

1. Mr Mohareb emphasised that he had earlier been granted leave to advance a particular form of pleading against the State and the Council, following the State's interlocutory application for summary dismissal or to strike out the Amended Statement of Claim. However, Mr Mohareb did not file any Further Amended Statement of Claim pursuant to that leave. Thereafter the Council moved for dismissal or to strike out the entirety of the then proposed version of the Further Amended Statement of Claim, based on the failure to provide particulars, s 60 of the Bankruptcy Act, and because no cause of action was disclosed. Mr Mohareb maintained that it had been no part of the Council's case, and he had not been given any notice, of the fact that parts of his claim based on damage to property would be struck out. However, the State's motion filed on 11 December 2020 sought to strike out particular paragraphs of the "Proposed Further Amended Statement of Claim", including those parts said to be for or based on damage to property.
2. It was on this point that we heard further from Mr Guihot for the Council, and further in reply from Mr Mohareb.
3. Mr Guihot confirmed, in response to the Court's question, that in the course of argument (tcpt 30/4/21 pp 109-113) he had pointed to various allegations in the pleading which were affected by s 60 of the Bankruptcy Act. At tcpt p 110 he took the judge to Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404 at [77] where Allsop P wrote: "No one submitted that any of these Australian cases, Faulkner v Bluett, Mannigel, Bryant or Daemar should not be followed. What they permit is a conclusion, that to the extent that damages for personal injury or wrong are inseverable from or directly consequential upon interference with property rights, a claim for them does not survive the stay brought about by s 60(2)."
4. Mr Guihot then directed his Honour to various paragraphs in the pleading which in his submission were claims said to be a direct consequence of an interference with property rights. There followed (tcpt p 113) this exchange: "GUIHOT: Your Honour, we say that by reference to the pleadings in this case, to the extent that the plaintiff alleges any personal injury, it is a direct consequence of interference with property rights. HIS HONOUR: Just a moment. You say it's inseverable, do you? GUIHOT: I'd prefer to put it on the basis of the other expression; it's of direct consequence of interference with the property rights. HIS HONOUR: What is there to stop the Court from saying, "That part of your pleading represents an assertion of property damage, but this part represents a claim of personal injury"? GUIHOT: Because that's not how it's pleaded, and that's not how the plaintiff has indeed pressed his case. Your Honour, I can start at paragraph 19, which my friend Mr Williams took you to. This is a recital of the criminal acts said to have been committed in and about the council's premises. I won't recite them all, your Honour. In terms of matters subsequent to 4 December 2017, which appear from paragraph 19 onwards, there was a recital of the act of interference with the plaintiff's property. HIS HONOUR: I can see that; 19 through to 22." GUIHOT: But, relevantly, after each act the plaintiff says, "Whereby the plaintiff was put in fear and greatly humiliated and embarrassed". The paragraphs that followed paragraph 19 and are summarised at paragraph 22, "Whereby, in relation to all of the above, the plaintiff was put in fear, greatly humiliated and embarrassed, suffered hurt to feelings and economic loss"."
5. Counsel then addressed paragraph 58 of the draft pleading and there was the following exchange (tcpt p 112): "Your Honour, the allegations against the second defendant are also spelt out at paragraph 58(d). Again I'll just note that there is the merging of interference with property rights and consequential aspects of personal injury. Indeed, your Honour, to adopt the plaintiff's own words in his written submissions, at paragraph 2 of the written submissions the plaintiff confirms-- HIS HONOUR: What're you looking at? GUIHOT: The plaintiff's written submissions, your Honour. HIS HONOUR: Yes, there are a number of subparagraphs. Two. GUIHOT: Paragraph 2. He articulates and provides support for the very proposition I'm making. He describes, by giving a concrete, practical example, and I'll paraphrase it, "Kelso smashes the side window of my car which displays council's self-adhesive parking permit", et cetera, et cetera. Then (c), I won't read what your Honour would read. Down to (d), "This, in turn, comforted and emboldened the aggressors and let them to keep repeating ad nauseum and escalating the abovementioned cycle". Even the plaintiff's articulation of how he frames his case against the council involves that personal injury being consequential to the interference with his property rights. Your Honour, that's why we say the case that he has pleaded and made submissions in respect of doesn't constitute, for the purposes of the Act, personal injury or wrong in the light of that appellate authority."
6. Shortly after those submissions (tcpt p 113-114), Mr Mohareb was invited to respond, and he did so at some length: "HIS HONOUR: Thank you, Mr Guihot. Mr Mohareb, are you able now to respond to Mr Guihot's submissions? PLAINTIFF: Yes, your Honour. With regard to the second point, which is the bankruptcy issue, Mr Guihot has ignored more recent authorities that have a very different view from what Mr Guihot is relying upon, and they're in my submissions, as Mr Guihot just - HIS HONOUR: Just let me - can you refer me to your written submissions where you refer to these authorities? PLAINTIFF: Yes, your Honour. HIS HONOUR: Where are they? PLAINTIFF: If I go - if your Honour can go to page 7, paragraph 17 at (a) with Beazley J at Badcock v State of South Australia [2010], "Where essential cause of action is injury to the personal feelings of the bankrupt, the right to sue remains with the bankrupt". And then, similar to that, there was material, it says, "Justice Lockhart carried out an extensive review of case law in relation to common law prior to qualification of Bankruptcy Act." That's over the page at (d), and it says, "The"-- HIS HONOUR: When did Lockhart J do that? What decision is that that you're referring to? PLAINTIFF: I'm not sure - exactly sure, your Honour, but - I'm not sure exactly when, but, but the finding is very - is very revealing. "The common thread running through this case is it's not where the - is that where the primary substantial right of action is direct pecuniary loss of the property or state of bankrupt, the right to sue to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt". And it just refers to Wetherell v Julius [1850]. "But where the essential cause of action", which it goes back to Beazley J, "Is the personal injury done to the person feeling - the bankrupt, the right to sue remains with the bankrupt". Now, in addition to that I add that the property that was damaged was nearly worthless property. There was a Honda Civic model 2000, which is 21 years old car worth $2,000. The motorbike was 1995 model, which again, is 1,500 or $2,000. So very limited - the value of the property that was damaged was very limited."
7. It will be seen that Mr Mohareb engaged in terms with the complaint that his claim was for personal injury derivative upon damage to property, including by positively stating that the damage to personal property was relatively minor, and much less significant than the personal injury of which he complained. (It should be noted that the State's written submissions of 4 February 2021 and the Council's written submissions prepared before February 2021 squarely dealt with the relevant provisions of the Bankruptcy Act.)
8. The paragraphs struck out by the primary judge reflected the oral submissions made on behalf of the Council based on s 60.
9. In his further submissions in reply in this Court, Mr Mohareb maintained that no submission was made based on the effect of s 60, that he had no notice of the point, and that the procedure was unfair. He made more serious submissions, which were critical both of the judge and the counsel. They were unfounded. The most generous conclusion that can be drawn is that this complaint reflects Mr Mohareb's misunderstanding of what occurred. Contrary to what may have been his belief, Mr Mohareb did not have an unqualified right for the parts of the pleading which survived challenge before Wass DCJ to go to trial. Indeed, that was pointed out in the State's written submissions, which noted that as he had "no pleading currently on foot", Mr Mohareb "requires leave of the Court in order to file an amended pleading". Mr Mohareb did have an entitlement to be heard before anything was struck out, or leave to amend refused, by reason of the effect of s 60 of the Bankruptcy Act. Although he strenuously maintains that he had no opportunity to be heard about this, he did indeed have an opportunity and was in fact heard as the transcript reproduced above demonstrates.
10. We add one matter for completeness. There is a prohibition in s 7 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) concerning appeals in matters arising under, inter alia, the Bankruptcy Act: see Boensch v Pascoe [2016] NSWCA 191; 311 FLR 101 and Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343. However, that prohibition does not extend to appeals from the District Court. The difficulties faced by Mr Mohareb are not jurisdictional, rather, they go to the substance of his application.

Refusal of leave to join Dr Bowler and Nine

1. The primary judge concluded that the proposed claim against Dr Bowler was untenable: at [30], and for that reason refused leave to amend.
2. The claim was summarised in detail at [17]-[22]. Its essence was that Mr Mohareb had seen Dr Bowler for the first time concerning his jaw injuries following unsuccessful surgery at Royal North Shore Hospital. The pleading alleged that Dr Bowler undertook to make a formal complaint on Mr Mohareb's behalf, but that did not occur. It also alleged that Dr Bowler did not treat him but sent Mr Mohareb back to the hospital knowing that it was incompetent to perform surgery upon him.
3. The primary judge considered that even if Dr Bowler reneged on his promise to complain, that was not causative of any compensable loss, and that even if Dr Bowler refused to treat him, that was not causative of any loss. Concerning the recommendation for him to return to Royal North Shore Hospital, his Honour said that (a) it was unsupported by a liability report as required by the rules in a professional negligence action, (b) there was nothing to suggest that a widely accepted peer professional opinion defence would not be available and decisive, and (c) there were difficulties in Mr Mohareb proving causation, in circumstances where he was free to choose where to obtain medical treatment.
4. No proper basis has been made out for a grant of leave to appeal from the primary judge's conclusion as to the prospects of this claim.
5. The primary judge dealt with the claim against Nine at [36]-[62]. He characterised the claim, in accordance with Nine's submissions, as one which was based on damage to his reputation by reason of Nine's publications. His Honour said at [53]: "All of the particulars in paragraph 67 make it clear that the multiple species of harm that Mr Mohareb says has befallen him has resulted from the effects of the publications. He cannot get around the fact that it is essential to his action in negligence that the publications have hurt his reputation, even if that hurt has been manifested in different ways, such as (without limitation) emboldening the plaintiff's opponents and aggressors to engage in further harmful activity towards him; by causing detrimental notations to be placed on his public record; or depriving him of professional opportunities."
6. At [55] his Honour stated that if a duty of care were owed, it would generate incoherence in the law, for the reasons stated in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [54]-[55], Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [28]; and Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [40]-[42]. At [56] his Honour said that even if there were a duty of care, it could only be owed by a publisher, and the evidence established that it was not reasonably arguable that Nine was a publisher. At [57] his Honour said that it would be necessary in order to make out this claim for Mr Mohareb to establish what the publications conveyed, and that made it clear that he was relying upon the same publications which were the subject of earlier proceedings brought by him against Harbour Radio and Fairfax. Fourthly, at [60], his Honour said that the time bar in s 14B of the Limitation Act 1969 (NSW) should not be permitted to be outflanked by running such a claim under the guise of a negligence action.
7. It is true that aspects of this reasoning give rise to questions of principle. However, the question whether Nine is the relevant publisher is a mere question of fact. The evidence before his Honour established that the companies which held licences under the Broadcasting Services Act 1992 (Cth) were Harbour Radio Pty Ltd and Fairfax Media Publications, which had already been sued by Mr Mohareb. It was entirely open to the primary judge to refuse leave for Mr Mohareb to bring in the 2018 proceedings a new cause of action against a new company belatedly said to be the publisher of publications identified in it, where the evidence pointed powerfully to that company not being the publisher. No grant of leave is warranted to challenge those orders.

Costs

1. Mr Mohareb says that the cost discretion miscarried and he should have had a costs order in his favour. Mr Mohareb was an unrepresented litigant. Had he obtained a favourable costs order, it would entitle him at best to recover some disbursements. Further, Mr Mohareb was an undischarged bankrupt. It is difficult to see how the costs order made against him during the course his bankruptcy was of any practical value. Mr Mohareb maintains this is a matter of principle to him. However, there is no question of principle in relation to costs, which reflected the application of settled principle. There is no question of public importance, and it is impossible to see any consideration favouring the grant of leave.

Procedural fairness

1. Mr Mohareb maintained in writing and in oral submissions that the primary judge did not sufficiently carefully examine his case, that there was "bias & denial of procedural fairness", and indeed that: "virtually all the errors and/or misunderstandings resulted, at least in part, from the primary judge's excessive anxiety & obsessiveness about the clock and consequently his failure - for 'case-management' time and cost-control expediency (ie cutting corners) - to take the time to thoroughly familiarize himself, not only with the acts referred to here but, as will be demonstrated below, with almost all the other relevant facts."
2. We do not agree. The claim of bias - which Mr Mohareb makes repeatedly of judicial officers (see most recently Mohareb v Kelso (No 3) [2021] NSWCA 213) - is groundless. It is to be borne in mind that the primary judge dismissed the Council's motion for the summary dismissal of the entirety of his claim against it. That is the opposite of a judicial officer with a mind pre-determined to rule against Mr Mohareb.
3. We also do not agree with the claim that the trial judge erred by reason of the constraints of time. The large majority of a very long interlocutory hearing was occupied by Mr Mohareb. It is true that the judge asked Mr Mohareb to move onto his next point, because he was repeating himself. We did the same. The fact of the matter is that Mr Mohareb has a tendency to repeat himself, and has a demonstrated capacity to write and speak at unnecessary length. Mr Mohareb was asked, twice, in the hearing in this Court that if the two day hearing he had enjoyed was unduly rushed, how many days should have been set aside for three interlocutory motions. On both occasions he declined to answer.
4. We have separately reviewed the entirety of the transcript before the primary judge. There is nothing that gives rise to a proper basis for a legal practitioner even to allege there has been a denial of procedural fairness. Mr Mohareb is not subject to the same professional constraints as a legal practitioner, and hence does not warrant the same criticism as would attach if a legal practitioner made the serious allegations which he has made without proper foundation. However, there is no sufficient basis for a grant of leave.
5. For these reasons, the summons seeking leave to appeal should be dismissed with costs.

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