Mohareb v State of New South Wales

Judgment

1. THE COURT: The applicant, Mr Nader Mohareb, seeks leave to appeal from the decision of Campbell J dismissing his transfer application in respect of three civil proceedings in the District Court and, in the alternative, of a criminal contempt proceeding in the Supreme Court: Mohareb v Kelso [2023] NSWSC 826. Leave to appeal is required as the decision is interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e).
2. In chronological order, and without identifying the full range of allegations made in each proceeding, the transfer application related to the following District Court proceedings: 1. 2015/201139: brought by Mr Mohareb against Mr Alexander Kelso on 9 July 2015 and subsequently amended (the 2015 proceedings) claiming damages for trespass and assault during the period April 2013 to May 2018 and defamation on or about 21 July 2014; 2. 2016/292950: brought by Mr Mohareb against Mr Taylor Booth on 30 September 2016 (the 2016 proceedings) claiming damages for defamation on 30 September 2015 and 4 October 2015 and assault on 18 August 2015; and 3. 2018/221230: brought by Mr Mohareb against the State of New South Wales (the State) and Northern Beaches Council (the Council) (the 2018 proceedings) claiming damages for defamation, negligence and intentional tort against the State and damages for negligence against the Council, which proceedings were transferred from the Supreme Court to the District Court by order made by Hoeben CJ at CL on 15 March 2019: Mohareb v Harbour Radio Pty Limited; Mohareb v Fairfax Media Pty Limited; Mohareb v State of NSW [2019] NSWSC 270.
3. On 14 May 2021, Abadee DCJ ordered that the 2015 and 2016 proceedings are to be tried immediately after the 2018 proceedings and by the same judge: Mohareb v State of New South Wales [2021] NSWDC 177 at [184].
4. The Supreme Court proceedings involve an application brought by Mr Mohareb against Mr Kelso that he be punished for criminal contempt. The contempt alleged against Mr Kelso is a criminal assault upon Mr Mohareb motivated by the 2015 proceedings brought by Mr Mohareb against Mr Kelso. On 5 June 2020, Simpson AJA remitted that application, which had been filed in separate proceedings brought by Mr Mohareb in the Court of Appeal relating to the 2016 proceedings, to the Common Law Division of the Supreme Court: Mohareb v Kelso [2020] NSWCA 105. That proceeding is currently pending as proceeding 2020/174984 (the contempt proceedings).
5. It should be observed that by his further amended summons filed 17 February 2023 in the Supreme Court proceedings against Mr Kelso and also Ms Vanessa Kelso, Mr Mohareb seeks a variety of other relief including leave to prosecute Mr Kelso for various (mainly indictable) offences or, in the alternative, an order in the nature of mandamus directed to the Director of Public Prosecutions for the Attorney-General of New South Wales commanding the bringing of criminal proceedings for the prosecution of the alleged offences. Mr Mohareb also seeks leave to prosecute Mr Kelso and Ms Kelso for other offences including perjury and making false statements, and again, in the alternative, seeks an order in the nature of mandamus commanding the bringing of a prosecution against those persons. The question of competence of this application was not before the primary judge, nor this Court.
6. By notice of motion filed 14 November 2022, Mr Mohareb sought orders that either (i) the three District Court proceedings be transferred to the Supreme Court, or (ii) the Supreme Court proceeding be transferred to the District Court. He also sought ancillary relief that upon either transfer, the proceedings be consolidated and tried at the same time as or immediately before or after the proceedings in the other court. The primary judge refused the transfer application on four grounds.
7. First, that there were "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 factual matrix", because the contempt proceedings were "criminal in nature" and it is desirable that the integrity of the contempt proceeding should be maintained, referring to NSW Bar Association v Muirhead (1988) 14 NSWLR 173 at [15].
8. Second, that "it would not be … 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": at [16].
9. Third, that Mr Mohareb's contentions relying upon natural justice and him being self-represented could not be propounded in the context of the transfer application before the Court. Also, the decision of Hoeben CJ at CL transferring the 2018 proceedings to the District Court: Mohareb v Harbour Radio Pty Limited [2019] NSWSC 270 could only have been challenged by way of appeal: at [17] - [19].
10. Fourth, that the evidence did not support an inference that the amount to be awarded to Mr Mohareb in the 2015, 2016 and 2018 proceedings was likely to exceed the $750,000 jurisdictional limit in the District Court. In any event, by reason of the 2018 proceedings having been transferred, the District Court had unlimited jurisdiction as to the quantum of damages in respect of those proceedings: at [20].

Applicable principles: leave to appeal

1. Ordinarily leave to appeal will only be granted if the proposed appeal raises an issue of principle or question of general importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].
2. In this case, the primary judge's decision was discretionary and appellate intervention will be warranted only upon the principles stated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40. See also: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] (Heydon JA, Sheller JA and Studdert AJA agreeing). Further, the challenge to the refusal of the transfer application faces the additional difficulty that the Court exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure: In re the Will of Gilbert (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39.

Disposition of application

1. Leave to appeal should be refused.
2. As to proposed ground 1, which challenges the primary judge's reasons at [15]-[16], there was no arguable error by his Honour in having regard to the criminal nature of the contempt proceedings against Mr Kelso and the civil claims brought in the District Court when concluding that there are no procedural advantages to be gained by transferring the civil claims.
3. Nor does his Honour's reliance, at [15], upon statements in NSW Bar Association v Muirhead at 182-183 (Kirby P), 198 (Hope JA) and 199-200 (Mahoney JA, although in dissent as to the result) disclose any arguable error. Given the express reference to pp 182-183 of the reasons of Kirby P, the primary judge can be taken to have had regard to the statement by Kirby P at 183F that, notwithstanding the terms of s 63 of the Supreme Court Act which emphasises the fundamental principle of avoiding "multiplicity of legal proceedings", a "special rule" applies to proceedings which are criminal in character. Nor does the inclusion by Mr Mohareb of a claim for compensation in his criminal contempt proceedings alter the essentially criminal nature of those proceedings.
4. Contrary to Mr Mohareb's oral submissions, the primary judge considered at [16] the possibility, assuming transfer, of the civil proceedings being heard separately and after the determination of the contempt proceedings. His Honour found that there was no advantage in that approach in this case, taking into account that the contempt proceedings and the civil proceedings had not previously been joined together, and the significant risk of the appearance of prejudgment arising. That assessment was well-open to his Honour and no arguable House v The King error has been established.
5. Further, the desirability of separating the contempt proceedings from the civil claims because of the appearance of pre-judgment arising, if the cases proceeded separately one after the other being assigned to the same judge, would apply in whichever sequence the matters might be heard, and is not "purely a theoretical/imaginary hypothesis", as Mr Mohareb suggested.
6. As to proposed ground 2, the primary judge correctly concluded at [17] that it was not for his Honour to determine Mr Mohareb's assertions of bias and procedural unfairness made against some District Court judges, a former judge of that Court and the judicial registrar. That was a matter for an appellate court exercising supervisory jurisdiction over the District Court. Further, Mr Mohareb's submission that the impugned conduct of the named District Court judicial officers taints the whole of the District Court with a lack of jurisdiction is untenable.
7. As to proposed ground 3, the complaint by Mr Mohareb that the primary judge erred in failing to consider his challenge to the decision of Hoeben CJ at CL on 15 March 2019 transferring the 2018 proceedings from the Supreme Court to the District Court is misconceived. As the primary judge correctly observed at [19], if Mr Mohareb wished to challenge the 2019 decision his remedy was to seek leave to appeal to the Court of Appeal. It was not open to him to make a collateral attack on that decision by contending on the transfer application that the decision of Hoeben CJ at CL was "baseless" or involved a miscarriage in the exercise of discretion.
8. As to proposed ground 4, concerning the jurisdictional limit of the District Court, s 140(3)(b) of the Civil Procedure Act 2005 (NSW) provides that 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 unless the Supreme Court is satisfied, relevantly, that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court (being $750,000). There is no arguable error in the primary judge's reasons at [20]: 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.
9. As the primary judge observed at [20], Mr Mohareb provided no evidence on the transfer application that his claim would likely exceed the jurisdictional limit of the District Court against any of the defendants in the 2015 and 2016 proceedings. And, as his Honour found at [20], the District Court was vested with unlimited jurisdiction with respect to the 2018 proceedings following the transfer order made by Hoeben CJ at CL on 15 March 2019 transferring the 2018 proceedings to the District Court. The effect of s 149 of the Civil Procedure Act is that in relation to any proceedings to which a transfer order relates, the lower court has, and may exercise, all of the jurisdiction of the higher court.
10. Proposed grounds 5 and 6 are irrelevant. By ground 5, Mr Mohareb seeks an unusual order that he be charged with contempt of court for his conduct in several identified proceedings, it seems for scandalising the Court. Proposed ground 6 seeks a referral of certain identified matters to the Independent Commission Against Corruption, but it does not arise at all from the proceedings before the primary judge. Neither proposed ground warrants a grant of leave to appeal.
11. Proposed ground 7 is also irrelevant. It seeks ancillary relief in relation to the contempt proceedings in the Supreme Court, relevantly, an order for the arrest of Mr Kelso relying upon Pt 55, r 10 of the Supreme Court Rules 1970 (NSW). However, that has no bearing on the correctness of the decision of the primary judge dismissing the transfer application. The proper forum for ancillary relief in relation to the contempt proceedings is the Supreme Court.

Orders

1. Mr Mohareb has failed on the leave application and there is no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
2. The Court makes the following orders: 1. Dismiss the summons seeking leave to appeal filed 20 July 2023. 2. The applicant to pay the first respondent's and the second respondent's costs in this Court.

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