Palmer v Mohareb

Palmer v Mohareb - [2019] NSWSC 975 - NSWSC 2019 case summary — Zoe

[4]

Three years of vexatious applications

Since May 2015 Mr Mohareb has instituted multiple proceedings against Mr Palmer in the District Court, Supreme Court and Court of Appeal and one application to the High Court. In these reasons I have designated the various notices of motion and other applications as "First Proceeding", "Second Proceeding" and so on. The principal events have been the following: 2015 5 June: District Court - First Proceeding heard (notice of motion for leave to prosecute Mr Palmer for perjury). 30 July: District Court - First Proceeding dismissed: Mohareb v Palmer (No 2) [2015] NSWDC 141 25 November: Court of Appeal - Second Proceeding dismissed (application for leave to appeal re First Proceeding): Mohareb v Palmer [2015] NSWCA 369. 15 December: District Court - Third Proceeding commenced (notice of motion for leave to prosecute Mr Palmer for perjury). 2016 4 March: District Court - Third Proceeding dismissed: Mohareb v Palmer (No. 3) [2016] NSWDC 38. March: Court of Appeal - Fourth Proceeding commenced (application for leave to appeal re Third Proceeding). 12 May: District Court - Fifth Proceeding commenced (notice of motion for referral for contempt). 9 August: Court of Appeal - Fourth Proceeding, leave to appeal granted. 14 October & 16 November: Attorney General's application for Vexatious Proceedings Act orders against Mr Mohareb heard. 16 December: Attorney General's application dismissed: Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823. 22 December: Court of Appeal - Fourth Proceeding dismissed (appeal re Third Proceeding): Mohareb v Palmer [2016] NSWCA 378. 2017 13 February: District Court - Fifth Proceeding, second part, commenced (notice of motion for leave to prosecute Mr Palmer for perjury). 30 May: District Court - Fifth Proceeding dismissed: Mohareb v Palmer (No. 4) [2017] NSWDC 127. 1 November: Supreme Court - Eighth Proceeding dismissed (application for leave to appeal from Local Court refusal of costs): Mohareb v Palmer [2017] NSWSC 1491 (Adamson J). 2 November: Court of Appeal - Sixth Proceeding dismissed (application for leave to appeal re Fifth Proceeding): Mohareb v Palmer [2017] NSWCA 281. 15 November: Supreme Court - Ninth Proceeding commenced (application to reopen decision in Eighth Proceeding). 2018 15 February: High Court - Seventh Proceeding dismissed (application for special leave re Sixth Proceeding). 3 April: Supreme Court - Ninth Proceeding dismissed: Mohareb v Palmer (No 2) [2018] NSWSC 400 (Lonergan J). 16 July: Mr Palmer filed his summons for relief under the Vexatious Proceedings Act. 21 September: Mr Mohareb's notice of motion filed in these proceedings (for leave to prosecute Mr Palmer for perjury, referral of Mr Palmer for contempt). 4 October: Court of Appeal - Tenth Proceeding dismissed (application for leave to appeal re Ninth Proceeding): Mohareb v Palmer [2018] NSWCA 220. 2019 12 April: Mr Mohareb's amended notice of motion filed in these proceedings.
The matters instituted by Mr Mohareb have all lacked reasonable prospects of success. His claims have all been dismissed. Mr Mohareb has no formal legal training and in all but two of the matters he has not been legally represented. In his numerous appearances he has demonstrated no useful working knowledge of the law, either substantive or procedural. Mr Mohareb has conducted the proceedings, particularly at first instance, with unshakeable fixation upon perceived wrongs, unresponsiveness to reasoned discussion and temperamental volatility. His presentation has on a number of occasions made it very difficult for the District Court to maintain progress and direction through hearings while giving Mr Mohareb a fair hearing.
Indemnity costs have been awarded on some occasions when Mr Palmer has been represented. Mr Mohareb's fruitless litigation has cast a significant burden upon the courts, in terms of time and patience, and on the public, in consumption of the resources available for the administration of justice. The greatest burden has fallen upon Mr Palmer. For over three years he has never been free of pending litigation against him, in one court or another. Upon each groundless application being dismissed Mr Mohareb has filed an equally groundless leave application or appeal. No sooner has a leave application or appeal failed than Mr Mohareb has returned to the court of first instance to agitate another matter to similar effect.
Litigation takes its toll on the lives of private individuals. It is wearing enough for commercial people, with financial interests at stake, but at least they may view it as a cost of doing business. Relentless, meritless personal claims against a defendant by a member of his or her local community constitute a gross invasion of private life. In this case Mr Palmer, as defendant and respondent, has endured a protracted and expensive legal dispute. Necessarily he must have been diverted from productive activity. For reasons that will appear I find that Mr Mohareb's pursuit of Mr Palmer has been without foundation and an abuse of court processes.
Of necessity the courts must devote their attention to the minutiae, factual and legal, of each individual application in the expectation that correct resolution of each will achieve justice. A purpose of the Vexatious Proceedings Act is to require that, in response to an application brought properly within its terms, this Court will not only examine the particulars of each separate proceeding alleged to have been vexatious but will also stand back from the individual outcomes to assess the effect of the whole. In accordance with the Act the Court must determine whether legal processes have been abused, with unacceptable impact upon a respondent party and on the efficient use of the courts for the benefit of the whole community.
If the Court finds that a litigant has frequently instituted vexatious proceedings anywhere in Australia, it is empowered by the Act to prohibit that person from commencing proceedings in any court or tribunal in New South Wales except by the Court's leave: s 8(7)(b). No doubt it is a significant step to deny free access to the State's courts and tribunals. I am mindful not to exaggerate the gravity of the constraint. A person subject to an order under the Act may still apply to this Court pursuant to ss 12-16 for leave to institute proceedings. Upon examination of whether there is prima facie justification for the proposed proceedings, a judge may grant leave, with conditions if thought necessary. A vexatious proceedings order thus imposes a filter rather than a bar.

[5]

Mr Palmer's summons for relief and Mr Mohareb's notice of motion

The last of Mr Mohareb's proceedings prior to commencement of Mr Palmer's claim for relief under the Act was an application to the High Court for special leave. Special leave was refused on 15 February 2018. Mr Palmer's summons was filed four months later, on 16 July 2018. Mr Mohareb was undeterred. On 21 September 2018 he filed herein a notice of motion. I find that also to be vexatious.
Paragraph (1) of the notice of motion claims leave pursuant to s 338(1) of the Crimes Act 1900 (NSW) to prosecute Mr Palmer for perjury alleged to have been committed by his swearing an affidavit on 15 August 2018 in support of his summons. This is an inherently intimidatory claim, made before the Court has heard cross-examination of Mr Palmer, or received any contradictory evidence, let alone arrived at any finding on the challenged depositions. It is an abuse of process for Mr Mohareb to make such an application in advance of the hearing in which the allegedly perjured evidence is to be given. It could not possibly be known, when such an application is filed before the hearing, whether the impugned evidence will be disbelieved or whether it will be material to the proceeding. This is considered further at [144]-[148] below
In addition, it could not reasonably be contemplated that leave would be granted for a private prosecution to be launched by a man who has been engaged in highly personal litigation against the person he wishes to prosecute; who has by the content of his applications and arguments and by the repeated dismissal of his claims demonstrated a profound lack of legal knowledge or skill; and whose volatile behaviour in court, including on the hearing of this summons, has shown him entirely unsuited to the role of prosecutor.
Paragraph (2) of the notice of motion claims an order that Mr Palmer be punished for contempt pursuant to Pt 55 of the Rules of the Supreme Court 1970 and pursuant to s 326 of the Crimes Act (threatening a witness). The second part of this is misconceived as the Court would not hear a charge under the Crimes Act on a notice of motion in civil proceedings. The contempt is particularised as an alleged assault upon Mr Mohareb by Mr Palmer in the car park at Church Point on 1 April 2016. In May 2016 Mr Mohareb applied to Gibson DCJ pursuant to s 203 of the District Court Act 1973 (NSW) for an order referring the same alleged contempt to this Court (referred to below as part of the Fifth Proceeding). Her Honour found that the conduct alleged was not capable of amounting to contempt: Mohareb v Palmer (No. 4) [2017] NSWDC 127 at [85]-[93]. Leave to appeal was refused: Mohareb v Palmer [2017] NSWCA 281 at [17]-[23]. Where an application to have Mr Palmer charged with contempt has been rejected, without error, by a court of appropriate jurisdiction, it is an abuse of process for Mr Mohareb to make this further first-instance application to another court with parallel jurisdiction.
Paragraph (3) seeks leave pursuant to s 23 of the Defamation Act 2005 (NSW) to bring, by cross-claim against Mr and Mrs Palmer in these proceedings, a further claim for damages arising out of the same published matter as that upon which Mr Mohareb sued in the District Court in 2014. This application could not succeed given that the original claim was settled by apology and then dismissed on the basis referred to at [3] above. Mr Mohareb's proposed cross-claim would also plead an assault alleged to have been committed in April 2013, which would have no legal or factual connection with Mr Palmer's principal claim under the Vexatious Proceedings Act. In written submissions filed by Mr Mohareb on 22 February 2019 he said that he did not press his application for leave to file a cross-claim although the order was still sought in the amended notice of motion filed on 12 April 2019.
Paragraph (4) seeks: "That there be a finding of actual bias … on the part of … Gibson DCJ". This could only be determined if raised in the Court of Appeal as a ground of appeal from one of her Honour's decisions. Mr Mohareb has sought this order upon the misconception that an allegation of bias in a District Court judge may be heard and determined as a freestanding issue at first instance in the Common Law Division of this Court. Again this paragraph was said to be not pressed in the submissions of 22 February 2019 but was included in the subsequently amended notice of motion.
There is no reasonable foundation for any of the above orders. On 12 April 2019 Mr Mohareb filed an amended notice of motion alleging that Mr Palmer had perjured himself in a second affidavit filed in support of his summons. The amended notice of motion claims the following additional orders, which are also unsustainable.
Paragraph (5) asks that all of Gibson DCJ's costs orders in favour of Mr Palmer be vacated. This cannot be entertained. A single judge of this Court does not hear appeals from a judge of the District Court.
Paragraph (6) claims an order that all costs orders against Mr Mohareb made by other courts "which were consequent to and/or which had resulted from" Gibson DCJ's costs orders be vacated. This would embrace orders of the Court of Appeal and of the High Court. I have no power to review those costs orders.
Paragraph (7) seeks an order that the sequestration of Mr Mohareb's estate, ordered by the Federal Circuit Court on 5 November 2018, be set aside. The act of bankruptcy was non-payment of costs awarded to Mr Palmer by Gibson DCJ. I have no power to set aside an order of the Federal Circuit Court.
The claims in pars (4)-(7) would be recognised as insupportable by anyone with a basic knowledge of the hierarchy of the courts and of their respective jurisdictions. Oblivious to his own lack of understanding of the legal system, Mr Mohareb has imposed upon Mr Palmer, yet again, an application that is bound to fail. Two days were occupied in hearing Mr Palmer's summons and Mr Mohareb's notice of motion. At least half of that time was taken up with Mr Mohareb attempting to cross-examine Mr Palmer on issues said to arise from the motion and with his persistent and repetitive submissions in support. Only a few questions were allowed, much time being taken up with Mr Mohareb's arguments to justify questions that were rejected. Mr Mohareb has only a very loose grip on the notion of relevance.
In Neil v Nott (1994) 68 ALJR 509 the High Court observed (at 510): A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.
I have attempted to discharge that burden in this case. While Mr Palmer simply relied upon the published reasons of the judges who have dismissed Mr Mohareb's many applications, Mr Mohareb deluged the Court with three folders of documents. The exhibit to his affidavit of 21 September 2018, said to be in support of his notice of motion, includes: 1. transcripts, judgments, affidavits, notices of motion and other evidence and process in the failed applications against Mr Palmer; 2. emails exchanged between Mr Mohareb and Mr Palmer in the period August 2015 to February 2017 concerning the litigation between them; 3. digital recording and transcript of a 23-minute conversation between Mr Mohareb and Mr Palmer on 9 or 10 September 2014 concerning conflict between them over control of dogs on Scotland Island and the defamatory poster; 4. submissions and other documents in the Attorney General's 2016 application for vexatious proceedings orders against Mr Mohareb; 5. printouts of internet news items and transcripts of radio broadcasts concerning Mr Mohareb and his litigation against various defendants; 6. photographs, registration documents, abandoned vehicle records of Northern Beaches Council and communications with police concerning Mr Mohareb's motorcar, which was left in Church Point car park for an extended period and was vandalised by some person (not alleged to have been Mr Palmer); 7. medical evidence and correspondence with the Office of the Director of Public Prosecutions concerning a home invasion and assault upon Mr Mohareb in December 2017 (not alleged to have been perpetrated by Mr Palmer).
Mr Mohareb's affidavit of 14 January 2019 is said to be in defence of the summons and also in support of his notice of motion. Exhibited to that affidavit is a folder containing documents in the following categories: 1. more transcripts, judgments, affidavits, notices of motion and other evidence and process in the failed applications against Mr Palmer; 2. emails exchanged between Mr Mohareb and Mr Palmer in connection with their litigation in 2014; 3. printouts of various posts on the Scotland Island community Facebook page; 4. more documents connected with the Attorney General's 2016 application for vexatious proceedings orders against Mr Mohareb; 5. transcripts and judgments in the District Court and Court of Appeal in Mr Mohareb's proceedings including numerous applications against Mr Alexander Kelso and Mr Taylor Booth; 6. transcript of an argument between Mr Mohareb and Mr Alexander Kelso in mid-July 2014.
Mr Mohareb's 40 pages of written submissions were accompanied by a folder of documents in the following categories: 1. more transcripts, judgments, affidavits, notices of motion and other evidence and process in the failed applications against Mr Palmer; 2. transcript and judgment in the Attorney General's 2016 application for vexatious proceedings orders against Mr Mohareb; 3. transcript and judgment of 15 November 2017 in the Federal Circuit Court; 4. a 43-page amended statement of claim filed in this Court on 3 October 2018 by Mr Mohareb against the State of New South Wales (on behalf of the New South Wales Police) and the Northern Beaches Council.
Although I have reviewed all of this documentary evidence and have done my best to understand what use Mr Mohareb seeks to make of it, I have found a great deal of it irrelevant to the issues before me.

[7]

Mr Palmer's present standing

By s 8(4)(d) of the Act it is provided that the persons who may bring an application for a vexatious proceedings order include: (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings.
Of the two statutory grounds upon which a vexatious proceedings order may be made, as prescribed by s 8(1), Mr Palmer relies on ground (a), as follows: (a) the person [ie the defendant, Mr Mohareb] has frequently instituted or conducted vexatious proceedings in Australia.
I am satisfied that all the proceedings instituted and conducted against Mr Palmer by Mr Mohareb since the settlement of the defamation action, with the exception of part of the Fifth Proceeding, have been vexatious. Mr Palmer therefore has standing to bring this application, in accordance with s 8(4)(d) of the Act. Reasons for finding the relevant proceedings vexatious are given below. Some of the proceedings had been instituted and conducted before Schmidt J completed hearing the Attorney General's application on 16 November 2016. The proceedings brought by Mr Mahoreb since that date alone have been sufficiently frequent to engage s 8(1)(a). The entire course of Mr Mohareb's litigation since March 2015 presents a still more egregious picture. Reasons for my conclusions on frequency are also elaborated below.
It is necessary to summarise the impugned proceedings in chronological sequence in order to expose the vexatious character of each, according to the statutory definition. The definition is one of inclusion. It has been in the following form since 20 February 2018: 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The summaries of proceedings given below are repetitive of what appears in other judgments, particularly those of Gibson DCJ and of the Court of Appeal. The multiple occasions on which Mr Mohareb has agitated and reagitated secondary issues arising from the original defamation action have required the courts to repeat, in their reasons on each occasion, much of the history. Unfortunately consideration of the present application has required that most of this be laid out yet again. Material features of the earlier proceedings cannot satisfactorily be identified for the present purpose merely by cross-reference to passages in other judgments. It is important to the present application that Mr Mohareb's litigious conduct be considered both separately, in each of his cases, and as a whole.

[9]

Settlement of the defamation claim and mention on 23 April 2015

By the deed of settlement signed in March 2015 Mr and Mrs Palmer agreed that within 14 days they would: use their best endeavours to publish an apology [in agreed terms as set out in the deed] on the Scotland Island Community web page on Facebook. The Palmers also agreed not to enforce interlocutory costs orders that had been made in their favour. Mr Mohareb agreed to discontinue the proceedings within 7 days of the apology first being published.
Mr Palmer swore an affidavit on 23 April 2015 in support of his claim that the deed of settlement had been performed by himself and Mrs Palmer. He deposed that he had posted the agreed apology on the Community Facebook page at about 9:44 pm on 31 March 2015. He said that on 1 April 2015 he became aware that it had been removed. He reposted it at some time before 2:00 pm on 1 April but it was again removed.
Although not deposed to in Mr Palmer's affidavit of 23 April 2015, documents and oral evidence subsequently tendered in the District Court showed that Mr Palmer had not given the moderators of the Facebook page notice that he intended to post the apology. As a result one of the moderators, Mr Van Mierlo, had it removed because he misinterpreted it as "having a dig" at Mr Mohareb. When Mr Palmer was informed of this on 1 April 2015 he sent a Facebook message to the moderators explaining that the apology was made pursuant to a settlement of court proceedings and urging that it be reinstated. Mr Palmer continued to message the moderators, pressing for permission to re-post the apology, up to 11:31 pm on 1 April 2015.
Mr Palmer's affidavit of 23 April 2015 contained the following paragraph: 13. On or around 2 April 2015 I received a Facebook private message from the moderator of the Facebook Page to the effect that I would be banned from the page if I attempted to post the apology again.
Annexure MP-7 to Mr Palmer's affidavit was a Facebook message to him from one of the moderators (later shown to have been Mr Van Mierlo) dated 2 April 2015 at 7:30 am, as follows: Sorry, we won't allow the post and you will be banned from the page if you attempt to post it again. The page is not public domain, we control who and what we allow on it. If your barrister wants to know more, message his contact details so we can contact him.
On 23 April 2015 the defamation proceedings were listed before Gibson DCJ. Mr Palmer's counsel referred to the above parts of the affidavit and explained to her Honour that the parties were now in dispute as to whether the settlement deed had been performed by Mr and Mrs Palmer. Mr Mohareb said he denied performance, denied that the proceedings were resolved and denied that he was obliged to discontinue his claim. This was merely a mention of the proceedings to update the Court on their current status. There was no application by either party for orders and no occasion for any finding to be made on the subject matter of Mr Palmer's 23 April 2015 affidavit. Her Honour stood the matter over to 21 May 2015 to enable Mr Mohareb to obtain legal advice as to how he should proceed.

[11]

Hearing on 5 June 2015; finding re second takedown on 2 April

On 5 June 2015 Gibson DCJ heard Mr Palmer's application for orders to give effect to the settlement of the defamation claim. In the judgment of 30 July 2015 her Honour found that the deed had not been performed in that the apology was not published on the Facebook page within 14 days of signing. However the proceedings were dismissed under s 61 of the Civil Procedure Act on "proportionality principles", as mentioned earlier.
In the course of determining whether the deed had been performed, Gibson DCJ considered a contention by Mr Mohareb that early on the morning of 2 April 2015 Mr Palmer had been given permission by Mr Van Mierlo to repost the apology and that he had done so but had then taken the apology back down. Relevantly to this issue, the contextual messages of 1 and 2 April 2015 were considered by her Honour. These demonstrated, first, the events of 1 April 2015 as summarised at [37] above. Secondly, they showed that after Mr Van Mierlo's message at 7:30 am on 2 April 2015 refusing permission to repost the apology (as deposed to by Mr Palmer on 23 April 2015) there was an exchange of messages to the following effect: 1. 2 April 2015 at 8:39 am: Mr Palmer provided to Mr Van Mierlo a contact number for his solicitor. He also said that he did not care if the apology was posted because he had fulfilled his obligation "to make a fair and reasonable attempt to do so" and that he had relayed the moderators' objection to his counsel. 2. 2 April 2015 at 8:48 am: Mr Van Mierlo wrote, "In that case we will reinstate your post". 3. 2 April 2015 at 10:26 am: Mr Van Mierlo wrote, "We reinstated your second attempt to post. It was visible on the page and it is now gone. We did not remove it, so perhaps you did that". Mr Van Mierlo stated that if someone else had reported the post to Facebook and caused Facebook to remove it, then the moderators could do nothing about that.
Mr Palmer gave oral evidence on 5 June 2015 that he had not caused the post to be taken back down on 2 April. It would be highly surprising if he had, in view of the objective documentary evidence of his strenuous efforts the previous day to overcome Mr Van Mierlo's objections and the subsequent equally strenuous efforts of his solicitor to the same end. The solicitor deposed, in his affidavit of 21 May 2015, to actions he had taken, commencing on 23 April 2015 and continuing with numerous messages to and from Mr Van Mierlo. This exchange culminated in the apology being posted on 1 May 2015, where it remained. There was an inconsequential misspelling of Mr Mohareb's first name, corrected shortly afterwards.
In Mohareb v Palmer (No 2) at [42], [51(4)] and [71], her Honour concluded that Mr Palmer had taken the apology back down at some time before 10:26 am on 2 April 2015 after having received permission to put it up less than two hours earlier. This conclusion was based on assertions in Mr Van Mierlo's Facebook messages that only Mr Palmer or Facebook itself could have removed the post: see [27] (message of 2 April 2015, 10:26 am) and [36] (message of 29 April 2015, 14:07). Her Honour was not satisfied that Facebook had removed the post: [42].
In a subsequent hearing on 18 February 2016 her Honour received evidence that the apology originally posted on 31 March 2015 had in fact remained on the page continuously thereafter. A screenshot of the 31 March 2015 apology, in chronological order immediately following postings from other Scotland Island Community members, was tendered and became Exhibit 1 before her Honour. In a judgment handed down on 4 March 2016, Mohareb v Palmer (No. 3) [2016] NSWDC 38, her Honour said (at [38]) that this: suggests that evidence I accepted when the proceedings were before me in June 2015 as to whether the apology was in fact removed a second time [ie on the morning of 2 April 2015] by anyone (let alone [Mr Palmer]) appears unreliable. At [43] her Honour added: What Exhibit 1 does do is to make me question the reliability of any findings I made about whether the 31 March 2015 post was in fact removed as claimed. At [46] her Honour referred to the fact that Mr Mohareb had not tendered expert evidence about the workings of Facebook and that this created difficulty for the Court in: assessing the accuracy of claims which appear plausible but which may be founded upon misapprehensions of technical issues or simple inability to search a website (as I suspect is the case here).

[12]

Mr Mohareb's application for leave to prosecute for perjury

The aspect of the proceedings on 5 June 2015 that is most material to Mr Palmer's present Vexatious Proceedings Act application is Mr Mohareb's motion before her Honour for leave under s 338(1)(c) of the Crimes Act to prosecute Mr Palmer for perjury (the First Proceeding). The section is as follows: 338 Restrictions on prosecutions for perjury (1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions, or (b) at the direction of the Attorney General, or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. (2) If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court. (3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.
Her Honour referred to Mr Mohareb's failure to particularise the charge for which he sought leave, in these terms (at [80]-[82]): [80] The precise acts of perjury are identified by [Mr Mohareb] as follows: "I have firm and irrefutable evidence that in his affidavit of 23 April 2015, Mr Matthew Palmer made false statement(s) on oath concerning a matter which is material to the proceedings, knowing the statement(s) to be false as well as not believing it to be true." [81] ... In his letter of 15 May 2015, [Mr Mohareb] stated that [Mr Van Mierlo] denied having initially refused to allow publication of the apology, and that [Mr Palmer's] statements to the contrary were "false assertions under oath", which was "a criminal offence". [82] In fact this is what occurred and this allegation is without foundation.
The offence of perjury is enacted in s 327 of the Crimes Act, the relevant subsections of which are the following: 327 Offence of perjury (1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years. … (4) The question of whether any matter is material to a proceeding is a question of law.
The elements of the offence are clear from s 327(1) and have been restated in the authorities, for example in Moss v McIlveen [2011] NSWCA 77 at [18] (Whealy JA, Handley AJA agreeing). The elements may be summarised in this way: 1. that a statement has been made on oath in judicial proceedings; 2. that the statement is false; 3. that the accused made the statement knowing it to be false or not believing it to be true and 4. that the statement concerned a matter that was material to the proceedings, in the sense of being practically relevant to them.
All of the above elements must, of course, be proved beyond reasonable doubt. In Moss v McIlveen at [19] Whealy JA further stated that the falsity of the statement relied upon must be proved by at least two witnesses or by one witness who is corroborated. As to that requirement, see also R v Fish [2002] NSWCCA 196; (2002) 131 A Crim R 172 at [39]-[40]. Whealy JA emphasised that: a prosecution for perjury is not only a serious matter, it is quite difficult to prove the charge to the requisite standard.
Gibson DCJ dismissed Mr Mohareb's First Proceeding because: [85] … the sole piece of evidence identified in correspondence [namely, par 13 of Mr Palmer's 23 April 2015 affidavit] is not perjured evidence but a correct statement of the facts; and [83] Mr Mohareb was unable to identify with precision what evidence given by [Mr Palmer] today [apparently referring to the hearing on 5 June 2015] was perjury.
Her Honour's reasons for refusing to grant leave under s 338(1)(c) were summed up as follows: [87] Given the lack of evidence in the supporting affidavit and the plaintiff's failure to delineate additional "perjury" in this application, the motion should be dismissed with costs. Those costs should be assessable on an indemnity basis, to reflect the hopelessness of such an application.
Mr Mohareb failed to specify a viable charge of perjury despite her Honour endeavouring to obtain particulars from him through protracted discussion (tcpt 05/06/15, pp 131.27-138.36). In those circumstances her Honour did not need to consider discretionary factors relevant to whether leave should be granted to Mr Mohareb as a private prosecutor. The discretionary aspect was referred to in passing at [84] and [86].
Mr Mohareb's application would inevitably have been dismissed on discretionary grounds even if he had been able to formulate a charge. He gave no indication that he would engage legal representation for the purpose of prosecuting the alleged perjury. His demonstrable lack of legal knowledge would have made him a most unsuitable person for a grant of leave. On my reading of the transcript he was markedly unreasonable in the conduct of the proceedings before her Honour. He was obtuse and irrational in argument. There were ample indications that he would be incapable of exercising the restraint, balance and fairness that is expected by the courts of those who prosecute criminal charges, particularly where the available penalty includes imprisonment.
Mr Mohareb's personal hostility to Mr Palmer was inherent in the substance of the defamation action and palpable in the way those proceedings were conducted. No reasonable decision maker in the position of Gibson DCJ would have authorised Mr Mohareb to pursue his civil litigation opponent in satellite litigation under the criminal law.
This First Proceeding before Gibson DCJ was thus "instituted and pursued without reasonable ground" within the meaning of s 6(c). Mr Mohareb could not formulate a charge of perjury with sufficient certainty to warrant leave being granted under s 338(1)(c) and, even if he could, all of the circumstances were strongly against the exercise of the Court's discretion under that section.

[13]

Second Proceeding - Mohareb v Palmer [2015] NSWCA 369

Mr Mohareb's Second Proceeding was an application for leave to appeal against Gibson DCJ's dismissal of his First Proceeding. The leave application came before the Court of Appeal on 24 November 2015 and was refused with costs at the conclusion of the hearing. Mr Mohareb was represented by counsel. In reasons published on 27 November 2017, Mohareb v Palmer [2015] NSWCA 369, the Court explained that: [15] … [Mr Mohareb's] real complaint was not that there had been a false statement made in the affidavit of 23 April 2015, but that a false representation or statement was made because [Mr Palmer] did not disclose in connection with the making of the statement in para 13 of his affidavit that shortly thereafter the moderator had changed his mind. However, her Honour was right to conclude that the making of that statement was not, and certainly was not sufficiently clearly, the subject of the application for leave. Her Honour also correctly concluded that the statement in para 13 was not itself a false statement. [16] In the absence of the clear identification of the perjury charge sought to be brought, her Honour did not err in dismissing the application. For that reason, the proposed appeal did not have reasonable prospects of success and the application for leave to appeal was dismissed with costs.
This application for leave to appeal from Gibson DCJ's decision was, like the application at first instance, "instituted and pursued without reasonable ground" within the meaning of s 6(c). The vexatiousness of the First and Second Proceedings cannot be minimised by characterising the point upon which they failed as technical. If, as appears to have been the case, Mr Mohareb did not have the legal understanding or skill to be able to plead a charge of perjury upon which he would prosecute Mr Palmer, he should not have brought the application to Gibson DCJ in the first place. The imposition of meritless proceedings upon Mr Palmer and upon the courts is no less vexatious for the fact that Mr Mohareb proceeded at first instance without legal knowledge, nor by the fact that he found counsel willing to argue the leave application.
The transcript of argument on the leave application on 24 November 2015 and the Court of Appeal's reasons show that no encouragement was given to Mr Mohareb to make a further application in the District Court. The Court of Appeal did not suggest that a viable perjury charge could be particularised in terms of misrepresentation by conduct, constituted by par 13 of Mr Palmer's affidavit in conjunction with nondisclosure of Mr Van Mierlo's 8:48 am message on 2 April 2015. Yet, as described at [69] and following below, on 15 December 2015 Mr Mohareb commenced in the District Court his Third Proceeding - another application for leave under s 338(1)(c) - this time for a perjury charge formulated as misrepresentation by conduct.

[14]

2016 decision that First and Second Proceedings not vexatious

When the Attorney General applied for vexatious proceedings orders against Mr Mohareb in 2016, par (d) of s 6 of the Act was in terms different from the current wording (see [32] above). The application was heard by Schmidt J in October and November 2016, at which time par (d) was as follows: (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
That wording of par (d) was arguably open to the interpretation that it required proof of a subjective intention "to harass or annoy" etc. However her Honour interpreted it as "capturing the result of the conduct of the proceedings, whether or not that was what was subjectively intended": Attorney General for the State of New South Wales v Mohareb at [60]-[61]. On that view, s 6(d) as in force at the time of those proceedings had substantially the same effect as the current wording of the provision.
Despite having argued for the interpretation of s 6(d) that her Honour ultimately adopted, being a test concerned with objective effect rather than subjective intention, the Attorney General sought to characterise Mr Mohareb's First and Second Proceedings as vexatious solely on the narrow ground of subjective intention to harass or annoy. The Attorney General submitted to Schmidt J (tcpt 14/10/16, p 33) that: the attorney's claim here is that there is a vexatious purpose. In short the attorney's position will be that Mr Mohareb … has no personal interest in whether or not [Mr Palmer] is prosecuted and the Court will [infer] those applications are drawn for a vexatious purpose being to harass or annoy.
This was repeated on the second day of hearing (tcpt 16/11/16, pp 11-12): The intention of [the relevant part of the Attorney's written submissions] is to limit the allegation to an allegation of a desire to pursue these proceedings with the vexatious intent of harassing or annoying. … [W]hat possible motivation other than a desire to hurt or punish Mr Palmer could drive this application.
In my respectful view Schmidt J was not confined in her assessment of vexatiousness by these narrow submissions. The jurisdiction under the Act is protective, both with respect to parties who may be subject to vexatious litigation and with respect to the time and resources of the courts. Pursuant to s 8(4) the Court may make a vexatious proceedings order of its own motion. It follows from these considerations that if proceedings impugned in an application by the Attorney General are perceived by the Court to be vexatious on a ground different from that which the Attorney propounds, the Court may act upon its own view. That is, of course, subject to hearing the defendant with respect to the different ground.
In this case, Schmidt J followed the Attorney's submissions and considered Mr Mohareb's First and Second Proceedings only by reference to the criterion of deliberate intent to harass or annoy: see Attorney General for the State of New South Wales v Mohareb at [150]-[151]: [150] … The law permits a party to proceedings who makes such an allegation of perjury to seek leave to prosecute the alleged offence. If the leave sought is given and the perjury is established it will, no doubt, be punished. [151] In order for it to be concluded that the pursuit of that allegation against Mr Palmer, which the Attorney has not suggested was groundless, was conducted "in a way so as to" harass and annoy Mr Palmer, more must obviously be established than the mere making and pursuit of the application for leave, if it is not suggested that the allegation was groundless. In that event, s 6(c) would be engaged.
In the present application Mr Palmer relies upon all four paragraphs of s 6. For reasons given above I am of the view that the First and Second Proceedings were vexatious upon a basis that the Attorney General did not advance and that Schmidt J was not called upon to decide, namely, that they were "instituted [and] pursued without reasonable ground" within the meaning of s 6(c).

[15]

Third Proceeding - Mohareb v Palmer (No. 3) [2016] NSWDC 38

Mr Mohareb's Third Proceeding was another notice of motion in the District Court for leave to prosecute Mr Palmer for perjury. This was filed on 15 December 2017, only three weeks after Mr Mohareb had been refused leave to appeal from Gibson DCJ's dismissal of the previous such application. In this fresh notice of motion the following particulars were given of the alleged "offence of perjury in [Mr Palmer's] affidavit 23 April 2015": (a) The Affidavit was on oath. (b) On 23 April 2015, the Affidavit was read in the District Court of New South Wales judicial proceedings 2014/243522 as part of an application for an order pursuant to s73 Civil Procedure Act 2005 declaring that those proceedings had been settled. (c) The Affidavit was material to those proceedings in that it was relied upon for the purpose of showing why an apology - the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings - was not visible on the Page at the time of swearing (23 April 2015). (d) At paragraph 13 of the Affidavit, the Defendant made a statement that was false in a material particular in that it included a message from the moderator of the Page, sent at 7.30am on 2nd April 2015 purportedly showing the moderator refusing to allow the Defendant to post the apology. (e) At the time of making the above mentioned statement, the Defendant knew that it was false, because, at 8:48 am on 2nd April 2015, he had received a further message from the moderator of the Page informing him that he had reconsidered his initial refusal and had now decided to allow the posting of the apology. (f) The Defendant had extracted the moderator's initial message out of its context and had occulted subsequent messages from his Affidavit with the specific intention of misleading the Court into believing in a state of affairs which was the opposite of their true state. Namely, that the reason for the absence of the apology from the Page as at 23 April 2015 was that the moderator was refusing to allow its publication.
These particulars were evidently drawn with legal assistance. The proposed charge of perjury was misconceived in law. The offence requires proof that something said or written on oath by the accused was false. Here, what was written in the 23 April 2015 affidavit was true, as the Court of Appeal subsequently held in Mohareb v Palmer [2016] NSWCA 378 at [43]-[45]: [43] The representation said to have been made and to be untrue is to the effect that [Mr Van Mierlo's refusal to allow the apology to be posted on the Facebook page] as stated in the message referred to at para 13 had not changed. No such statement was made in para 13 or merely by the swearing of the affidavit. The argument that such a statement was made and false requires that other conduct be taken into account, and specifically what happened at the hearing on 23 April 2015. That other conduct includes that there was no reference made in the context of the argument before the Court to [Mr Van Mierlo's] later message of 8:48 am. This is the "omission" which [Mr Mohareb] says was misleading and constituted the perjury. [44] A statement made on oath [being the first element of the offence of perjury] necessarily describes something said or written. It does not describe a representation conveyed by conduct which may include the making on oath of a written or oral statement. It is necessary to prove that what was said or written on oath was false. It is not sufficient to prove that a representation by conduct, which included the making of a statement on oath and silence, was false or misleading. [45] … The false representation is alleged to have been made by conduct, not being conduct only of [Mr Palmer], which does not include the making of a statement on oath in the terms which are said to have been false.
In addition to the perjury charge being particularised in a manner that could not be sustained in law, the discretionary considerations referred to at [55]-[58] above remained an insuperable obstacle to this fresh application. Further, the charge focused solely upon the proceedings on 23 April 2015 (see pars (b) and (c) of the particulars). Mr Mohareb well knew that the additional Facebook messages of 2 April 2015 had been produced by Mr Palmer to the Court on 21 May 2015 and were received in evidence and considered by her Honour on that date and at the hearing on 5 June 2015. The supposed misrepresentation by silence could, at worst, have lasted only for the duration of the 23 April 2015 mention, at which no findings of fact or orders were sought or made.
Although par 13 of the affidavit could be said to be "material" to the brief interlocutory hearing on 23 April 2015, that mention was of itself inconsequential in the District Court's disposition of the proceedings. The alleged nondisclosure was remedied at the very next listing of the case. The prompt rectification and ultimate insignificance of the supposed misrepresentation by conduct on this single date are further factors that would tell strongly against a grant of leave to prosecute, even if the misrepresentation was capable of being charged as perjury according to law.
Gibson DCJ heard the Third Proceeding on 18 February 2016. Mr Mohareb was represented by counsel and Mr Palmer by his solicitor. Her Honour dismissed the application with an order for indemnity costs on 4 March 2016: Mohareb v Palmer (No. 3) [2016] NSWDC 38. One of her Honour's reasons for this decision, addressing the misconception of law involved in the proposed charge, was expressed in the following terms: [30] First, this was an omission from an affidavit prepared by [Mr Palmer's] legal advisers, not a deliberate and positive statement on oath … . [37] [Mr Mohareb] has once again failed to articulate with precision the facts and matters relied upon to assert that [Mr Palmer's] omission from his affidavit to be material is capable of amounting to perjury. Accordingly, I dismiss the application.
Her Honour accepted Mr Palmer's evidence that he had instructed his solicitors to set out in the affidavit "the entirety of the conversations and dealings" (at [30] and [32]-[33]). The dismissal of the application did not depend upon this finding, having regard to her Honour's conclusion about the deficiency of the proposed charge.
Her Honour also recorded that Mr Palmer's omission to refer in his affidavit to the contextual messages of 2 April 2015 was insignificant to the proceedings before her in April-June 2015. The following extracts from [31] and [49] of her Honour's judgment address this: [31] … I can see nothing in this portion of Mr Lewis' [counsel for Mr Palmer] submission to the court [on 23 April 2015] to explain how this is perjured evidence or even that its presence or absence in the affidavit is material to the outcome. Mr Lewis dealt with the evidence of [Mr Mohareb (scil Mr Palmer)] step-by-step, including the circumstances of the second removal of the Facebook page [on 2 April 2015] for which [Mr Palmer] denied responsibility (a finding [sic] I did not accept). It was always part of [Mr Palmer's] case, whether it was in the affidavit or not. [49] … [An application under s 338(1)(c)] is a procedure which should be employed only where the circumstances of the trial render the findings of the judicial officer who constituted the tribunal of importance. That was not the case here.
This is the discretionary factor that I have identified above, which would have stood in the way of a grant of leave to prosecute whatever view Gibson DCJ had taken of the legal sufficiency of the proposed charge. Having regard to the misconception of law in the proposed charge and the adverse discretionary factors, this Third Proceeding, for leave under s 338(1)(c), was was bound to be dismissed. It was "instituted and pursued without reasonable ground": s 6(c).

[16]

Fourth Proceeding - Mohareb v Palmer [2016] NSWCA 378

In Mr Mohareb's Fourth Proceeding he sought leave to appeal against Gibson DCJ's decision in the Third Proceeding and he prosecuted an appeal after leave was granted. He appeared in person to argue the leave application on 9 August 2016 and Mr Palmer was represented by his solicitor. The representation was the same when the appeal was heard on 29 November 2016. On 22 December 2016 the appeal was dismissed with costs, including the costs of the leave application: Mohareb v Palmer [2016] NSWCA 378. The Court of Appeal's reasons have been extracted at [70] above.
The leave application and the appeal were instituted and pursued without reasonable ground. That conclusion is not inconsistent with the fact that leave was granted, when one has regard to the detail of that application. It is apparent from the transcript of 9 August 2016 that the leave bench understood there to be two significant issues. The first was whether there was a sufficient basis for her Honour's finding that Mr Palmer had instructed his solicitors to include in his affidavit all relevant Facebook messages. The second was whether it had been established that Mr Palmer had, for that purpose, informed the solicitors of the contextual messages of 2 April 2015.
Mr Palmer's solicitor did not address the leave bench on the proposed charge being unsustainable in law. Nor did he refer to any of the discretionary factors that told against Mr Mohareb being permitted to conduct a prosecution. These factors would have been most material to the question of leave. Further, the transcript shows that the solicitor was not aware, and did not explain to the Court, that no finding or order was made by Gibson DCJ on 23 April 2015; or that copies of the contextual messages of 2 April 2015 were tendered on the next occasion, 21 May 2015; or that they were in evidence before the District Court on 5 June 2015 when the only substantive hearing took place.
The solicitor informed the Court: I couldn't be aware of whether or not the primary judge would have ever seen [the contextual messages] because I was not involved in the first part - in the hearing that that affidavit is referred to - and I came into the picture long after that … This prompted one of their Honours to observe: … if we were to grant leave, the full materials before the primary judge would have to be before this Court and we could work out exactly what happened in this respect.
Mr Palmer's solicitor submitted in passing on the leave application that the omission from his client's affidavit "has virtually no material effect on the outcome of the case". He did not elaborate or explain this. Had he done so, this also would have been a factor relavant to the grant of leave. It is apparent that the features of the notice of motion before Gibson DCJ in the Third Proceeding that had doomed it to failure from the outset were not appreciated by Mr Palmer's solicitor and were not brought to the attention of the leave bench. The subsequent decision on the appeal shows that it lacked any reasonable ground, in respects that the leave bench would no doubt have recognised if their Honours had received more assistance.

[17]

2016 decision that Third Proceeding not vexatious

When Schmidt J concluded the hearing of the Attorney General's application for vexatious proceedings orders against Mr Mohareb on 16 November 2016, leave to appeal against Gibson DCJ's decision in the Third Proceeding had been granted but the appeal had not yet been heard. The Attorney General referred to the grant of leave to appeal as a reason for not contending that Mr Mohareb had lacked a basis for bringing his Third Proceeding before the Gibson DCJ or for appealing her Honour's decision (tcpt 14/10/16, p 38.39). The Attorney General submitted that the Third Proceeding before Gibson DCJ was vexatious only within the meaning of s 6(d), treating that provision as requiring proof of a subjective intention to harass or annoy (tcpt 14/10/16, p 38.40; 16/11/16, p 14.41, 17.6, 18.4-.28). The Attorney General expressly did not "place significant weight upon" Mr Mohareb's Third Proceeding (tcpt 14/10/16, p 39.15) in seeking a vexatious proceedings order.
Schmidt J held in Attorney General for the State of New South Wales v Mohareb : [152] That after the Court of Appeal's judgment in Mohareb v Palmer [2015] NSWCA 369 [the Second Proceeding], Mr Mohareb, who was then legally represented, made a further, albeit unsuccessful application in the District Court for leave to pursue his allegation of perjury [the Third Proceeding], is also not a basis on which it can be concluded that his further application was vexatious. He was, after all, given leave to appeal the judgment in which he was again refused leave. [153] That result does not leave open the findings for which the Attorney urged, that Mr Mohareb was too quick to conclude fraud or impropriety; that he had made "applications that are more serious, more costly and more elaborate than are necessary for the vindication of whatever is sought to be vindicated"; and that this established his wrongful intent, reflective of his lack of objectivity. [154] The views already reached by the Court of Appeal on the two applications it has dealt with support Mr Mohareb's case that his pursuit of the perjury allegation was not vexatious. …
These conclusions were reached upon the sole criterion of vexatiousness that the Attorney General had elected to pursue, namely, subjective intention to harass or annoy. As already mentioned, unlike the Attorney General Mr Palmer has not eschewed the criterion of "without reasonable ground" (s 6(c)). Nor would I exclude consideration of that criterion, whatever position Mr Palmer might adopt.
In the Court of Appeal proceedings to which Schmidt J referred, that Court was not asked to consider whether any of Mr Mohareb's proceedings were vexatious according to any of the tests in s 6. The Court of Appeal's decisions are not inconsistent with my assessment that the two applications to Gibson DCJ in the First and Third Proceedings and the appeals therefrom in the Second and Fourth Proceedings lacked reasonable grounds. As should be apparent, the basis upon which I have assessed the proceedings is not merely that they were repetitive with respect to the same subject matter. It is that each one of them, when examined as to its merits, is seen to have been insupportable from inception.

[18]

Fifth Proceeding - Mohareb v Palmer (No. 4) [2017] NSWDC 127

Mr Mohareb's Fifth Proceeding comprised two notices of motion in the District Court. By notice filed on 12 May 2016 he sought an order pursuant to s 203 of the District Court Act that Mr Palmer be referred to the Supreme Court in relation to contempt. The particulars were an alleged assault upon Mr Mohareb on 1 April 2016 at Church Point car park "in relation to [Mr Mohareb] pursuing of legal proceedings against [Mr Palmer]".
Section 203 of the District Court Act is in the following terms: 203 Power to refer allegation etc of contempt to Supreme Court (1) Without prejudice to the powers of the District Court under section 199, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, the District Court may refer the matter to the Supreme Court for determination. (2) On any matter being referred to the Supreme Court under subsection (1), the Supreme Court shall dispose of the matter in such manner as it considers appropriate.
The other notice of motion comprised in the Fifth Proceeding was filed on 13 February 2017, once more seeking leave pursuant to s 338(1)(c) of the Crimes Act to prosecute a charge of perjury. The proposed charge this time concerned oral evidence Mr Palmer had given on 5 June 2015. The particulars of false answers were specified as follows: e … that he asserted having instructed his legal representatives to report the entirety of his Facebook messaging conversation with [Mr Van Mierlo], when he, in fact, knew that he had not given any such instruction to his legal representatives. f … that he denied knowing who had removed the apology from the Page and denied that was him who was responsible [for] such removal, when he knew that it was him who was responsible for the removal of the apology.
The two notices of motion were heard together on 8 May 2017, Mr Mohareb appearing in person and Mr Palmer represented by his solicitor. Both were dismissed on 30 May 2017: Mohareb v Palmer (No. 4) [2017] NSWDC 127. I will consider the two notices of motion in the order in which her Honour dealt with them, which was the reverse of sequence in which they were filed.

[19]

The first alleged perjury

The full answer given by Mr Palmer on 5 June 2015 to which the first particular of perjury was directed was as follows: A. My instruction [to my solicitor] was to confirm to the plaintiff the entire conversation that I had between the Scotland Island Facebook page and myself and my endeavours to have that apology posted. It's somewhat pragmatic. I, I apologise. It's not very easy to extract that communication from Facebook, your Honour, I'm, I'm sorry. We did our best by screenshots. If it was - if all the information wasn't included, I'm sorry, but my instructions were to demonstrate our endeavours to have that apology posted.
Her Honour found with respect to this, in her judgment in the Fifth Proceeding, cited above: [41] … I do not consider that this is a lie or even a mistatement. [54] I am comfortably satisfied that [Mr Palmer] did tell his solicitors to put all the material before the Court because his position at all relevant times was that he did not remove the Facebook post the second time and he did not know who did, and because he knew his solicitor would swear an affidavit setting out the rest of the material. [55] None of the requirements set out in Moss v McIllveen at [19] could be met in relation to this asserted perjury. If anything, the corroborative evidence is in [Mr Palmer's] favour.
From the outset of this part of the Fifth Proceeding Mr Mohareb had no prospect of producing corroborated evidence capable of proving the alleged first perjury beyond reasonable doubt. Discretionary reasons for not granting leave were again applicable, particularly Mr Mohareb's self-represented status, his lack of legal knowledge and his lack of objectivity with respect to prosecuting the man who had been his opponent in this very personal civil litigation. Her Honour referred to aspects of Mr Mohareb's temperament and courtroom presentation which would tell against him being granted leave. At [3] her Honour noted: [T]he plaintiff's loud voice in the course of this application led to complaints from an adjoining court about the noise … and visits from the court's sheriff staff … . Great latitude is afforded by this court to litigants in person, but the length of time taken by this application, the level of disorganisation of presentation and the impact of the plaintiff's shouting and anger made it difficult for me to hand down my judgment as quickly as I would otherwise have done.

[20]

The second alleged perjury

The second particular of perjury for which leave to prosecute was sought in the Fifth Proceeding concerned Mr Palmer's evidence on 5 June 2015 that he had not removed the apology from the Facebook page on the morning of 2 April 2015, shortly after Mr Van Mierlo gave permission for it to be reinstated. As referred to at [46]-[47] above, her Honour rejected Mr Palmer's evidence in this respect in her judgment of 30 July 2015 in the First Proceeding but in light of a screenshot tendered at the hearing of the Third Proceeding on 18 February 2016 she considered that the evidence upon which that finding had been based was unreliable.
In those circumstances it was unjustified for Mr Mohareb to seek leave to prosecute for perjury on the basis that Mr Palmer had falsely denied removing the apology. Mr Mohareb was well aware, from her Honour's decision quoted at [47] above, that she considered the evidence as to "whether the apology was in fact removed a second time [ie on the morning of 2 April 2015] by anyone (let alone [Mr Palmer])" was unreliable. The decision containing that conclusion, Mohareb v Palmer (No. 3) [2016] NSWDC 38, had been handed down on 4 March 2016, 11 months before Mr Mohareb filed this further notice of motion concerning perjury, by which he commenced part of the Fifth Proceeding. On the hearing of the Fifth Proceeding in May 2017 Mr Mohareb tendered no evidence on the workings of Facebook to address the unreliability of the earlier evidence, as identified by her Honour.
In her Honour's judgment on this Fifth Proceeding reference was made (at [61]) to "the uncertainty" about how the apology was removed on 2 April 2015. That uncertainty was one basis for her Honour concluding that leave to prosecute should not be granted. It was pointed out at [57] that on a s 338(1)(c) application: the applicant must demonstrate reasonable prospects of success in the proposed prosecution by reference to evidence. Reliance upon a finding of fact [namely, her Honour's initial rejection of Mr Palmer's assertion that he did not remove the post] based in part on credit and for which there is no corroboration or expert evidence is insufficient.
Her Honour also invoked discretionary considerations against granting leave (at [61]): Some weight should also be given to the background history between the parties and the comparative triviality of a prosecution over [evidence concerning] a removal of a post on Facebook … .
The notice of motion for leave to prosecute was instituted and pursued without reasonable ground in respect of either particular of alleged perjury. It came within s 6(c) of the Act and was a vexatious proceeding.

[21]

The contempt allegation

The evidence tendered by Mr Mohareb on his application to have Mr Palmer referred for contempt was a video recording of an altercation between the two men in the Church Point car park on 1 April 2016. That date was shortly after Gibson DCJ had handed down her decision in the Third Proceeding and after Mr Mohareb had filed his application for leave to appeal (the Fourth Proceeding). The recording included sound. Mr Mohareb provided a transcript of what was said.
The recording clearly shows an angry discussion that escalated partway through, upon Mr Mohareb suddenly raising his voice, markedly above the level of the exchange to that point, and shouting repeatedly, "You are criminal! You are criminal!" As he shouted these words Mr Mohareb jabbed his pointed finger vigorously towards Mr Palmer, close to his face. Mr Palmer did not dispute the authenticity of the recording, either as to the images displayed or the words spoken. Mr Mohareb submitted to Gibson DCJ that Mr Palmer's conduct amounted to intimidation to discourage him from pursuing his application for leave to appeal.
To seek to dissuade a litigant from prosecuting proceedings by threats of unlawful action is no doubt a contempt of court: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 326 (Lord Cross of Chelsea). A wide range of threatening conduct against a party who has commenced or who intends to commence proceedings may, depending upon the circumstances, constitute contempt: Ulman v Live Group Pty Ltd [2018] NSWCA 338.
In deciding the contempt aspect of Mr Mohareb's Fifth Proceeding, Gibson DCJ considered Gregory v Phillip Morris Ltd (1987) 74 ALR 300, a case concerning threats to a witness. There, Gray J held: [I]n a case of alleged contempt of court involving intimidation of a witness, it must be proved beyond reasonable doubt that the alleged contemnor had some appreciation that the person threatened was a potential witness and some intention to dissuade the potential witness from giving evidence, or from giving truthful evidence. The requirement of intention may perhaps be satisfied by reckless disregard the likely effect of such a threat.
Her Honour accepted, correctly, that this requirement of "intention to dissuade" was equally applicable to the circumstances of the present case where the threat was alleged to have been made to a party rather than to a witness. Both of these situations are instances of a wider class of contempts, being acts calculated to interfere with the due administration of justice in particular proceedings. This case is not concerned within the separate class constituted by acts tending to interfere with the administration of justice generally, as a continuing process: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449F (Lord Diplock); The Prothonotary v Collins (1985) 2 NSWLR 549 at 567 (McHugh JA).
In Gregory v Phillip Morris Ltd Gray J relied upon Attorney-General v Butterworth [1962] 3 All ER 326, in which a witness was victimised after the case in which he testified had been decided. That conduct was not capable of interfering with the particular proceeding, because it had concluded, but the conduct had a tendency to interfere with the administration of justice generally. It had the capacity to create a sense of insecurity in witnesses who might be called in future matters: pp 329C, 330I (Lord Denning MR), pp 332I, 333I (Donovan LJ) and p 334H (Pearson LJ). Lord Denning MR said (at p 331F): It seems to me that the intimidation of a witness is only a contempt of court if it is done with the purpose of deterring him from giving evidence or influencing him to give it in a sense different from what he otherwise would, and the victimisation of a witness is only a contempt of court if it is done with the purpose of punishing him for having given the evidence in the sense he did.
Contempt by interference with the proper administration of justice in a particular case may be committed by public dissemination of written material that brings pressure to bear upon a party. For this to constitute contempt, the dissemination must have a real tendency to interfere with the course of justice but it is not necessary to prove that it was done with intent to discourage conduct of the proceedings: Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-28 (Mason P, Beazley JA agreeing). In Attorney-General v Butterworth Donovan LJ differentiated contempt by pre-trial publication from contempt by intimidation of witnesses, on the basis that in the former class of case there is an inherent likelihood that the publication will interfere with the administration of justice whereas in cases of contempt by intimidation, "in order to determine the likely effect of what the [alleged contemnor] did, one has to enquire into their motives" (at p 333G).
The proposition that in pre-trial publication cases intention to interfere with the administration of justice is relevant, whilst not being an essential element, was discussed in Ex parte Bread Manufacturers Ltd v Truth and Sportsman Ltd (1937) 37 SR (NSW) 242 at 249 (Jordan CJ) and in Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 at 696-697. It is not necessary to consider the pre-trial publication cases further in these reasons.
In Gregory v Phillip Morris Ltd Gray J also cited and relied upon Registrar, Supreme Court v McPherson. One of the alleged contemnors in that case had destroyed a document that was potentially relevant in a pending proceeding. The destruction was of itself lawful. Moffit P and Hope JA cited Attorney-General v Butterworth and said (at 699D-F): Before a nexus can be made between the act and any interference with the administration of justice, to use the words of Donovan LJ "further enquiry" has to be made. The enquiry is whether a material purpose of [the alleged contemnor], in destroying the document, was to prevent it from being produced to the court upon the compulsion of the subpoena in proceedings then pending. … [Upon this being answered affirmatively] there remains the further question whether the deprivation of the Court of the [document] in the whole of the circumstances had an inherent tendency, as a matter of practical reality, to interfere with the administration of justice. Where the purpose of destroying it was to frustrate the exercise of so important a power of the court as to require production of documents by the subpoenae, it is difficult to see why this step is not thereby established.
Glass JA found it unnecessary to decide whether it had to be proved that the contemnor had a purpose of obstructing the administration of justice in the pending proceedings, because his Honour was satisfied that the conduct knowingly engaged in had that tendency inherently: at 711G-712C. Mr Palmer's confrontation with Mr Mohareb did not have such an inherent tendency, as Gibson DCJ correctly assessed. Following the reasoning of Moffit P and Hope JA in Registrar, Supreme Court v McPherson, in order to establish a nexus between the confrontation and any interference with the administration of justice in Mr Mohareb's then pending application for leave to appeal (the Fourth Proceeding), intent on the part of Mr Palmer to deter Mr Mohareb would have to be proved.
One of the contemnors who was before the Court in Registrar, Supreme Court v McPherson appealed to the High Court: Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245; [1981] HCA 35. The following passage from the judgment of that Court reinforces that in the present case proof of an intention, or purpose, of deterring Mr Mohareb's appeal, was necessary in order to establish that the car park confrontation had any real or significant tendency to interfere with the administration of justice (at 258, some citations omitted): It was submitted on behalf of the respondent that conduct otherwise lawful can amount to a contempt of court if done with a particular intention. That is correct, but the intention must be to do something likely to interfere with the course of justice. Thus it may be lawful for one man to advise another to take a holiday in Brazil, but the giving of the advice may constitute a contempt of court if the advice is given for the purpose of keeping the witness out of the way to avoid service of a subpoena. It may be lawful to dismiss a servant or to deprive a man of his office in a trade union, but if this is done for the purpose of punishing him for having given evidence it is a contempt of court: Rowden v Universities Co-operative Association Ltd (1881) 71 LTJo 373; Attorney-General v Butterworth. In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice - to keep the witness out of the way or to victimize the witness. The words "purpose", "motive", "object" and "intention" are used interchangeably in the judgments in Attorney-General v Butterworth and it is quite unnecessary for present purposes to distinguish between them; we shall use the word "intention" to cover motive as well. An intention to interfere with the administration of justice is not necessary to constitute a contempt; the critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important (Attorney-General v. Butterworth; John Fairfax & Sons Pty. Ltd v McRae (1955) 93 CLR 351, at p 371; [1955] HCA 12). A lawful act may constitute a contempt if done with the intention of interfering with the course of justice, but will not become a contempt simply because it was done to achieve some purpose or further some interest of the person doing it.
The evidence that Mr Mohareb tendered before Gibson DCJ in his Fifth Proceeding was capable of proving beyond reasonable doubt that on 1 April 2016 Mr Palmer engaged in an argument with him and perpetrated a minor assault. In the words of Moffit P and Hope JA in Registrar, Supreme Court v McPherson, no "nexus" could be made between those acts and any interference with the administration of justice, unless it could also be proved that the acts were done with the intention or purpose of discouraging continuance with the appeal.
A contempt of this nature would necessarily be criminal rather than civil and all elements would have to be proved beyond reasonable doubt: Whitham v Hollier (1995) 183 CLR 525; [1995] HCA 3.
It was common ground before her Honour that the encounter in the carpark occurred by chance. Mr Mohareb said that he filmed it on his mobile phone, held in his right hand. Her Honour noted (at [87]-[92]) that because of the proximity of Mr Mohareb's pointed finger to Mr Palmer's face, which Mr Palmer sought to push away with his own hand, "some form of physical contact between them in those circumstances was inevitable" and whilst contact did occur it was "very slight". Her Honour found on this evidence that "no act capable of amounting to contempt of court occurred" (at [93]).
Even if the evidence was capable of proving a charge of criminal contempt her Honour would have exercised her discretion against referral because: [93] The circumstances of this incident do not warrant the serious step of a referral to the Prothonotary with the attendant use of valuable court resources for an incident of this comparatively minor nature: ss 56-62 Civil Procedure Act 2005 (NSW).
On the present application Mr Mohareb urged me to read the transcript of the verbal exchange while replaying the film, which of course I have done because he tendered the material. He urged me to take into account, as I do, the context of recent service upon Mr Palmer of the application for leave to appeal in the Fourth Proceeding. The tenor of Mr Palmer's angry words was that he accepted the appeal would proceed but he was infuriated that Mr Mohareb would agitate, for a fourth time, his application for leave to prosecute. By 1 April 2016 their had been two prior refusals of leave in the District Court and one failed application to the Court of Appeal.
The following portion of the verbal exchange was particularly relied upon by Mr Mohareb: Mr Mohareb: I'm not sure why you're talking to me. I served you with a Notice of Intention to Appeal … Mr Palmer: Yeah. Again. For the fourth time. For the fourth time. It will be knocked back. [emphasis added] The last sentence is inconsistent with either an intention to pressure Mr Mohareb into stopping the proceedings or a real tendency for the proceedings to be thus interfered with. Mr Palmer's words expressed his assumption that the appeal would go ahead and would fail.
A second passage relied upon by Mr Mohareb was in these terms: Mr Palmer: You can end all this. You seem to get your jollies from going to court every day and threatening people and suing people. You need to get your life ... This was immediately followed by an exchange about who had commenced the dispute. At that point the two men were standing very close to each other and the following exchange took place: Mr Mohareb: Stay back. I'm going to take it as far as it can go. Mr Palmer: You do it. Do it. [emphasis added]
The words in bold were an invitation, or taunt, that Mr Mohareb should proceed. They conveyed no threat of any action that would be carried out if Mr Mohareb should pursue his appeal. They could not reasonably have been understood or acted upon as a threat of that nature.
I have quoted the high points relied upon by Mr Mohareb. I respectfully agree with Gibson DCJ that the evidence was not capable of proving beyond reasonable doubt that Mr Palmer intended to intimidate Mr Mohareb to abandon the proceedings. In the absence of such intent or purpose, Mr Palmer's conduct was no more than participation in an intemperate argument and did not inherently carry any tendency to interfere with the pending proceedings. That is, in effect, the conclusion her Honour reached and it is not apparent to me that any other conclusion was open.
Mr Mohareb did not adduce evidence of any other such contact. There was no case of sustained or repeated argument or pressure, only this single spontaneous incident when his opponent in litigation, whom he had pursued repeatedly and unsuccessfully for two years, vented angry frustration. Both with respect to the insufficiency of the evidence to prove a criminal contempt and with respect to the discretionary considerations to which her Honour referred, this application for referral to the Supreme Court had from the outset extremely poor prospects of success. I do not conclude that it was instituted and pursued without reasonable ground, within the meaning of s 6(c) or that it was vexatious on any other basis. The video recording was a basis upon which Mr Mohareb could ask her Honour to consider exercising the power under s 203 of the District Court Act, albeit a very weak basis.

[22]

Sixth Proceeding - Mohareb v Palmer [2017] NSWCA 281

Mr Mohareb's Sixth Proceeding was an application for leave to appeal Gibson DCJ's decision in the Fifth Proceeding. On 2 November 2017 Mr Mohareb appeared in person on the leave application. Mr Palmer was represented by his solicitor. Leave to appeal was refused: Mohareb v Palmer [2017] NSWCA 281. With respect to the alleged counts of perjury, it was held that her Honour's findings of fact were open to her and that on an appeal the Court would not reconsider them. The Court found no issue of general principle that would warrant a grant of leave. Basten JA held (at [10]): there is no public interest in every circumstance in which a party believes (or a judge finds) that a witness has been untruthful that that person be prosecuted for perjury.
With respect to the alleged contempt, the Court of Appeal held that her Honour had correctly applied the law and that there was no reasonable likelihood that on appeal her Honour's order would be interfered with. At [25] Basten JA referred to the "undesirability of 'satellite litigation', other than in very clear cases". The following observations were made at [26]: [26] [T]his is … the third time that proceedings have been brought before this Court in relation to what is, in substance, the same set of issues. There have been some differences of form, but it would be an affront to the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW) to entertain this proposed appeal.
Although I have concluded that the video recording of the carpark incident constituted a basis for the contempt aspect of the Fifth Proceeding, there was no reasonable ground for Mr Mohareb seeking to appeal her Honour's decision. He could not reasonably have submitted that her Honour had failed to apply the correct principles. It is evident on the papers that he had no knowledge of the relevant aspect of the law of contempt. Further, it was manifestly unreasonable to seek the intervention of the Court of Appeal in relation to this minor car park altercation, which her Honour had assessed as insufficiently significant to warrant the serious step of referral to the Supreme Court.
Mr Mohareb could not have drawn any encouragement for this Sixth Proceeding from the decision of Schmidt J in the Attorney General's application under the Vexatious Proceedings Act. At the time of the hearing of that application in October and November 2016, Mr Mohareb had filed in the District Court his notice of motion regarding contempt in the Fifth Proceeding but it had not been heard.
The Attorney General submitted to her Honour that the video recording of the confrontation in the carpark did not clearly show that Mr Mohareb was assaulted or that Mr Palmer's purpose was to discourage or prevent Mr Mohareb pursuing his appeal: see Attorney General for the State of New South Wales v Mohareb [2016] NSWSC 1823 at [159]. It was further submitted that "it would thus be concluded that the contempt application was conducted in a way so as to harass and annoy Mr Palmer". Her Honour rejected those submissions as follows: [161] The mere fact that Mr Mohareb has exercised his undoubted right to make an application to have the contempt he alleges dealt with, does not give rise to the inference that he seeks to pursue Mr Palmer simply out of a desire to punish or hurt him, as the Attorney also argued, or permit the conclusion that the application was vexatious. The allegation is not either obviously groundless, or its pursuit wrongful, in the way I have discussed.
The Attorney General only argued that Mr Mohareb's pending notice of motion for contempt in the Fifth Proceeding was vexatious on the basis of subjective intent to harass and annoy. Her Honour's rejection of that and her statement that the contempt application was "not … obviously groundless" have been diminished in significance by subsequent events. Gibson DCJ heard the matter at length, applied correct legal principles, found that the evidence was not capable of sustaining a charge of contempt and determined that, in any event, on discretionary grounds the allegation should not be referred. From those conclusions Mr Mohareb had no reasonable ground for seeking leave to appeal, as he did in the Sixth Proceeding.

[24]

Eighth Proceeding - Mohareb v Palmer [2017] NSWSC 1491 - Adamson J

The Eighth Proceeding was application to this Court for leave to appeal a magistrate's costs ruling. On 28 February 2017 Mr Palmer's solicitor obtained from the Manager, Costs Assessment two certificates of assessment under cost orders that had been made against Mr Mohareb in his failed proceedings. The certificates totalled $11,384.51. On 3 March 2017 the certificates were emailed to Mr Mohareb with a demand for payment. Mr Mohareb responded on 7 March 2017: to inform you, pursuant to s 373(1) of the Legal Professional [sic] Act 2004, of my intention to submit an application for a review of the determination of the costs assessment.
The email set out the terms of s 373(1) and continued with this assertion: The fact that I have informed you my intention to submit an application for a review of the determination has the effect of suspending the operation of the determination of the costs assessment. Further more and according to the above, I have, at least until 30 March 2017 to submit my application for a review of the determination.
The provision to which Mr Mohareb referred had been repealed with effect from 30 June 2015: Legal Profession Uniform Law Application Act 2014 (NSW) ("the Uniform Law Application Act"). When it had been in force, the section did not have the effect asserted in Mr Mohareb's email. Section 86(1) of the Uniform Law Application Act, which was applicable at the time of the email correspondence, operates to suspend a costs determination upon an application for review being made to the Manager, Costs Assessment. Such an application must be made within 30 days of the certificate of determination having been forwarded to the parties. Mr Mohareb lodged an application for review within time on 30 March 2017.
Pursuant to s 73(3) of the Uniform Law Application Act a certificate of determination may be filed in the registry of a court of appropriate jurisdiction "and with no further action, taken to be a judgment of that court against" the party by whom the assessed costs are payable. On 5 May 2017 Mr Palmer's solicitor filed the two above-mentioned certificates in the Local Court at Manly, together with a third one for the costs of the assessor. The result was a judgment in his favour for $12,905.26. On the basis of this judgment, on 9 May 2017 Mr Palmer's solicitor issued a Bankruptcy Notice against Mr Mohareb.
Mr Mohareb filed a notice of motion in the Local Court seeking that the judgment be set aside. He also sought to have the Bankruptcy Notice set aside, for which the Local Court had no power. The notice of motion did not seek, in the alternative, a stay of execution of the judgment. When this motion was argued on 26 May 2017, the current legislation was identified. The learned magistrate noted that it had the effect of imposing "an automatic stay". Her Honour said: I don't propose to set aside judgment. What I propose to do is put a stay on the enforcement of the judgment pending the outcome of the review, just to be thorough, just to be cautious.
Mr Mohareb then applied orally "in the alternative for a stay" and her Honour so ordered. The learned magistrate refused Mr Mohareb's application for costs, giving the following reasons: I decline to make a costs order today. The application was flawed and was opposed legitimately on that basis. It's [been] resolved once the appropriate legislation has been ascertained but it's not appropriate, in my view, to make a costs order on your application. … I haven't granted your notice of motion. I haven't set aside judgment. … Your motion rested on a piece of legislation that is now repealed. … I have made a different decision regarding the application before the Court to stay the proceedings. Accordingly, your application or your motion has not been successful.
As Mr Mohareb represented himself on this application his costs would not likely have been more than a filing fee of about $80. During the hearing of the proceedings before me he asserted that he also incurred counsel's fees of $3,300 for advice on the matter. It is highly unlikely that any significant part of that would be assessed, given the extremely simple nature of the proceeding. But taking Mr Mohareb's case at its highest the learned magistrate's decision on costs had a maximum value of $3,380. For this small sum Mr Mohareb filed a summons in this Court for leave to appeal pursuant to s 40(2)(c) of the Local Court Act 2007 (NSW) (the Eighth Proceeding).
The summons was dismissed with costs by Adamson J on 1 November 2017: Mohareb v Palmer [2017] NSWSC 1491. Mr Mohareb argued that the learned magistrate had acted under the misapprehension that she lacked power to award costs in favour of a litigant appearing in person; that he had brought the application in the Local Court of necessity and that the magistrate had not taken this into account; and that insufficient reasons had been given. None of these grounds had any possibility of acceptance. They were rejected by Adamson J at [23]-[31]. Mr Mohareb's summons could as well have been dismissed solely on the basis that it that did not warrant consideration for such a small amount in issue, the decision in relation to which had been made in exercise of the Local Court's broad discretion as to costs.

[25]

Ninth Proceeding - Mohareb v Palmer (No 2) [2018] NSWSC 400 - Lonergan J

Mr Mohareb's Ninth Proceeding was an attempt to reopen the Eighth proceeding, by a further summons in this Court. The review of the costs certificates, for which Mr Mohareb had applied to the Manager, Costs Assessment, took place on 25 August 2017. On 6 October 2017 the review panel confirmed the certificates. On 9 October 2017 Mr Palmer's solicitor presented a creditor's petition against Mr Mohareb. On 15 November 2017 the District Registrar of the Federal Court determined that there was no available act of bankruptcy because at the date the Bankruptcy Notice was served, 9 May 2017, the statutory suspension of the costs assessments was in effect and therefore the debt claimed in the Notice was not capable of immediate enforcement. For that reason the Notice was invalid and non-compliance with it did not constitute an act of bankruptcy. See Matthew Palmer v Nader Nabil Sedra Mohareb [2017] FCA 1760.
On the day this decision was given in the Federal Court Mr Mohareb filed his further summons in this Court, to commence this Ninth Proceeding against Mr Palmer. He claimed, under r 36.16 of the Uniform Civil Procedure Rules ("UCPR"), an order setting aside Adamson J's orders in the Eighth Proceeding. He sought to have substituted orders under which his appeal from the Local Court would be allowed. He contended that: In view of the … finding by the Federal Court of Australia, none of the Manly [Local] Court orders made on 26 May 2017 were open to the Manly [Local] Court Magistrate to make them.
For present purposes the relevant parts of r 36.16 are as follows: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) [Not relevant] (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
The Ninth Proceeding came before Lonergan J on 22 March 2018. Mr Mohareb argued that Adamson J's refusal of leave to appeal from the Local Court should be "reopened" because the Federal Court's holding that the Bankruptcy Notice was invalid constituted "a material change in circumstances relevant to the leave application". On 3 April 2018 her Honour dismissed Mr Mohareb's summons with costs: Mohareb v Palmer (No 2) [2018] NSWSC 400. Her Honour considered that the Court had no jurisdiction to set aside or vary Adamson J's orders because they had involved dismissal of the entire proceedings then before the Court, thus engaging r 36.16(3)(b).
Because of her Honour's view that, in the circumstances, the Court had no power under r 36.16, she did not need to address the stark logical fallacy in Mr Mohareb's application. The Federal Court's determination that the Bankruptcy Notice was invalid had no bearing upon the learned magistrate's discretionary refusal to award costs when rejecting Mr Mohareb's application to set aside judgment six months earlier. The declaration of invalidity of the Bankruptcy Notice was not a relevant or material change of circumstances that had any bearing upon the basis for the decisions of the learned magistrate and of Adamson J.

[26]

Tenth Proceeding - Mohareb v Palmer [2018] NSWCA 220

Mr Mohareb's Tenth Proceeding was an application for leave to appeal Lonergan J's decision in the Ninth Proceeding. This application was heard on 21 September 2018 and was dismissed for reasons published on 4 October 2018: Mohareb v Palmer [2018] NSWCA 220. The Court of Appeal held that the summons before Lonergan J had been filed within 14 days of Adamson J's decision so that, contrary to Lonergan J's understanding, there had been jurisdiction to reopen the earlier decision under r 36.16(3A).
It was held (at [14]) that if leave were granted and if the jurisdiction under r 36.16(3A) were then exercised by the Court of Appeal: [14] … we would not however set aside Adamson J's judgment. In our opinion, there would be no basis for doing so. The decision of the Federal Court setting aside the bankruptcy notice did not affect the force of Adamson J's reasons for refusing leave to appeal. There is no reason to think that her Honour would have made a different decision if the Federal Court judgment had been delivered before her Honour made her decision.
The Court further held: [15] Robinson LCM's stay order was unnecessary because … there was an automatic stay pursuant to s 86 of the [Uniform Law Application Act]. It did not adversely affect Mr Mohareb's rights in any way as it simply confirmed, in his favour, what was already the case. Knowledge on the part of Robinson LCM of s 86 would however have supported her decision not to award costs to Mr Mohareb as, by her Honour's decision to grant a stay in his favour, he did not obtain anything that he did not already have. His argument that Mr Palmer should pay his costs would therefore have been considerably weakened. As a corollary, Adamson J would have been all the less likely to have granted leave to appeal from Robinson LCM's costs decision.
This entire litigious foray into the Supreme Court concerning the Local Court costs claim involved two hearings before Divisional judges and one before the Court of Appeal, spread over 11 months. Mr Mohareb represented himself in all of the Eighth, Ninth and Tenth Proceedings. Mr Palmer was represented by a solicitor before Adamson J and thereafter appeared in person. For these 11 months, overlapping with the latter stages of the saga concerning perjury and contempt (the Fifth to Eighth Proceedings), Mr Palmer was brought back and forth to court and public resources available for the hearing and disposition of genuine and serious disputes were diverted and wasted. Mr Mohareb's obstinate attempts to review this discretionary decision about a very small sum lacked legal merit or prospects of success. This was groundless, vexatious litigation par excellence.

[27]

Mr Mohareb's current notice of motion

At [10]-[20] above I have stated the reasons for which I will dismiss Mr Mohareb's notice of motion. Those are also my reasons for concluding that it has been instituted and pursued without reasonable ground and that it is vexatious. With respect to paragraph (1) of the orders Mr Mohareb has sought I add the following considerations.
In Mr Palmer's affidavit of 15 August 2018 pars [6]-[10], [12] and [23] are the first group alleged to be perjured. I rejected all of those paragraphs as irrelevant to Mr Palmer's summons. They were not read into evidence. They describe some of the conflict between the parties on Scotland Island, concerning such matters as the control of dogs in public places and the long-term parking of Mr Mohareb's car in the Church Point carpark. The paragraphs are irrelevant to the issues I have to decide under the Act. Those issues turn upon the conduct of court proceedings, not the management of dogs or cars. The evidence was not required as context to the litigation. The judgments in the various proceedings describe the context sufficiently.
For the charge of perjury that is proposed in Mr Mohareb's notice of motion, materiality of the allegedly perjured evidence to proceedings in which it has been given could not be demonstrated with respect to pars [6]-[10], [12] or [23]. This underscores the lack of foundation for Mr Mohareb having sought leave to prosecute for perjury before the impugned evidence had been tendered, let alone been the subject of any finding.
The second group of impugned paragraphs in Mr Palmer's 15 August 2018 affidavit comprises [22], [26], [48] and [54]. In each of those Mr Palmer has describes the conduct of earlier proceedings in the District Court using evaluative terms, such as "Mohareb continually failed to comply with the directions of the court" and "Mohareb was continually allowed to hold up proceedings". Generalities of that nature, involving elements of opinion and matters of degree, are incapable of being proved deliberately false. Mr Mohareb's purported falsifications of those paragraphs are merely his own evaluations, taking issue with the degree of procedural default that may appropriately be described as "continual".
There are more paragraphs of Mr Palmer's two affidavits that Mr Mohareb identified as being perjured and for which he sought leave to prosecute. It is not necessary to make any further analysis. The above examples are sufficient to illustrate one aspect of the unsustainability of paragraph (1) of the notice of motion and its vexatious character.

[28]

"Frequent" vexatious proceedings against Mr Palmer

In Potier v Attorney General for the State of New South Wales [2015] NSWCA 129 Leeming JA said (Meagher JA agreeing): [114] The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has "frequently" instituted or conducted vexatious proceedings in Australia. The meaning of a word like "frequently" turns very much on its context; that is no different from many other protean words (such as "adversely affect" and "mistake": cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that "frequently" is a relatively low threshold. [115] First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of "habitually and persistently" was deliberate, and plainly lowered the threshold condition. [116] Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency. [117] I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of "frequently". This illustrates the fact that "[t]he issue posed by the statutory term "frequently" is not to be assessed merely by an arithmetic calculation": Viavattene at [49]. [118] Each of those considerations favour "frequently" being a relatively low threshold.
At [119] Leeming JA held that the proportion of vexatious proceedings to other proceedings instituted or conducted by the litigant is not relevant to determining the issue of frequency for the purposes of s 8(1)(a). At [120] his Honour said that, because an order may operate with respect to all proceedings, it may be relevant to take that proportion into account in exercising the discretion to grant relief. Here, the 10 proceedings against Mr Palmer that I have considered in detail have all been vexatious (the Fifth Proceeding in part only) and they constitute all but a small part of the litigation between the two parties. Mr Palmer has referred to Mr Mohareb's litigation against other defendants and I have read some of the decisions in those cases. However, the proportion of vexatious proceedings against Mr Palmer relative to the whole of Mr Mohareb's litigious activities has not been explored before me.

[29]

Orders

The criterion of "frequently instituted or conducted" in s 8(1)(a) of the Act is amply satisfied by the ten vexatious proceedings prosecuted between mid-2015 and mid-2018. It would be satisfied even if attention should be confined to the seven proceedings Mr Mohareb has pursued since Schmidt J dismissed the Attorney General's application in December 2016. An order prohibiting Mr Mohareb from instituting further proceedings against Mr Palmer in New South Wales is justified.
The gravity of this vexatious conduct necessitates a further order prohibiting Mr Mohareb from instituting any fresh proceedings in New South Wales against any person. I am satisfied that his tendency to mount unsustainable proceedings and to abuse court processes in pursuit of a perceived wrongdoer is general. There is no basis in the evidence for concluding that Mr Mohreb's unacceptable litigiousness is only a product of his conflict with Mr Palmer and that it would not be repeated in relation to some other person with whom he might get into conflict.
As Mr Palmer's summons is concerned with securing protection for himself and as he has conducted the case without legal assistance, the Court has not been provided with the evidence that would be necessary to make findings about the extent of any vexatious conduct or applications in Mr Mohareb's other current matters. The Court is aware of proceedings that have not been finalised, brought by Mr Mohareb against the following defendants in this Court and in the District Court: 1. Harbour Radio Pty Ltd - Common Law Division No 2017/25606 2. Fairfax Media Publications Pty Ltd - Common Law Division No 2017/35614 3. State of New South Wales and Northern Beaches Council - Common Law Division No 2018/221230; transferred to District Court by order made 15 March 2019 4. Alexander Kelso, Saratoga Marine Pty Ltd, Saratoga Integration Pty Ltd - District Court No 2014/207569 5. Alexander Kelso - District Court No 2015/201139
On the hearing of this summons the Court has not received sufficient information about the course of those cases to justify an order staying any of them under s 8(8)(a). In the absence of any stay under the Vexatious Proceedings Act, those cases will continue, with control being exercised over any abuses of process or groundless applications in accordance with the UCPR.
On Mr Palmer's summons the following orders will be made: 1. The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any proceeding against the plaintiff, Matthew Palmer, in New South Wales. 2. The defendant, Nader Nabil Sedra Mohareb, is prohibited from instituting any new proceeding against any person in New South Wales, this order not to affect the filing of any interlocutory process in proceedings that have been commenced at the date of this order or any appeal or application for leave appeal from a decision in any such proceeding. 3. The defendant's amended notice of motion filed 12 April 2019 is dismissed. 4. Leave is granted to the plaintiff to apply for an order under s 98(4)(c) of the Civil Procedure Act 2005 that the defendant pay any costs or disbursements incurred by the plaintiff in connection with his summons and the defendant's notice of motion, including filing and hearing fees, such application to be made by 21 August 2019 by submissions emailed to the Associate to Fagan J accompanied by an affidavit as to amounts expended and supporting documents, with a copy to the defendant. 5. The defendant is to email any submissions and evidence in reply to the Associate, with a copy to the plaintiff, by 28 August 2019. 6. Any application by the plaintiff for costs and/or disbursements is to be determined on the papers.

At a glance

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