The Attorney General for the State of New South Wales v Mohareb

Supreme Court of NSW|2016-10-14|Before: Schmidt J

The claimed settlement

Other motions brought by both the defendants and Mr Mohareb came before Johnson J in February 2013, when Mr Mohareb claimed that a settlement had been reached, which the defendants disputed. The hearing was adjourned.
In June 2013, Harrison AsJ dealt with all the motions. She referred to Hidden J's orders, in Mohareb v Jankulovski [2013] NSWSC 850 at [123] - [124].
Mr Mohareb sought an order for specific performance of the terms of an agreement which he claimed the parties had entered on 4 February 2013. Her Honour concluded that while Mr Mohareb had an arguable case, given that the parties had agreed the broad terms of a settlement, their intention was that there would be no concluded contract until a formal document was executed. Accordingly, the orders Mr Mohareb sought were refused.
Her Honour also refused to make an order sought by the defendants, that Mr Mohareb pay the costs earlier ordered forthwith; she gave Mr Mohareb leave to replead and the defendants also sought an order for security. Her Honour concluded at [127]: "127 As in Bhagat, Mr Mohareb has brought unnecessary motions before this Court and in particular I refer to the notice of motion that was determined by Hidden J to be incompetent and Mr Mohareb was ordered to pay the costs. Mr Mohareb also has another costs order that of $8,325, made against him. I accept that on 12 February 2013, when he was ordered to pay the defendants' costs assessed at $2,200 he did so. When the defendants' solicitors requested Mr Mohareb to provide financial evidence that he had sufficient means to fund any costs order made against him he refused to provide any such information. Taking these matters into account, it is my view that it is necessary to ensure that Mr Mohareb exercises some restraint before filing further notices of motion. By filing numerous notices of motion, costs are incurred by both parties and they take up Court time and place strain on the Court's limited resources. As Mr Mohareb has not given any particulars of his financial position, it is difficult to say whether he will be in a position to pay the defendants' costs should he be ordered to do so. In these circumstances it is my view that an order for security for costs should be made. An appropriate amount for security for costs is the sum of $5,000.
Mr Mohareb was refused leave to appeal this judgment in December 2013 in Mohareb v Jankulovski [2013] NSWCA 462, despite it being considered at [19], that there was a real question as to whether Mr Mohareb's conduct was of a nature sufficient to justify the exercise of the power to order security. Given the amount involved and the fact that there was currently an unsatisfied costs order in favour of Mr Jankulovski, which exceeded the amount ordered, leave to appeal on that issue alone was refused.
The basis of the Court of Appeal's refusal of his appeal from Harrison AsJ's judgment, the strength of his case and the errors into which those who had refused his applications fell, he argued ,was revealed by the settlement to which the defendants then agreed, on terms more favourable to him than those by which he had claimed before Harrison AsJ the parties had been bound. That evidence was also not challenged. Thereby the proceedings were brought to an end.
In the result, I am satisfied that it is not open to conclude that Mr Mohareb's application was vexatious. On his evidence, he had a genuine belief that he had entered a binding settlement agreement. Her Honour's judgment accepted that his belief had a reasonable basis. There was nothing vexatious in the pursuit of that belief, given the technical reasons for which his application failed.

Leave to appeal from the costs assessment

In September 2013, in Mohareb v Jankulovski & Another [2013] NSWSC 1300, Barr AJ dismissed Mr Mohareb's appeal from the costs assessment, in which he had also claimed that he had "irrefutable evidence that the Defendants in collusion with their barrister Ms Marina Dulhunty are fraudulently claiming costs for work they have undertaken themselves while declaring under false pretences that the work was undertaken by Ms. Dulhunty" (as [9]).
Barr AJ noted at [14] that Mr Mohareb had provided no further particular of this claim of fraud, had led no evidence to support it and did not press it. His Honour considered that his "action in grounding his process on an assertion of fraud and then, when required to account for it, in abandoning it without further explanation is reprehensible. The assertion was scandalous. It had no basis in fact. The ground should be struck out" (at [15]). The judgment was not appealed.
Mr Mohareb's explanation for bringing his appeal from the assessor's decision in this Court, rather than in the District Court, was that he thereby sought to draw attention in these proceedings to what, if established, would have involved a contempt of this Court. Thus Mr Mohareb contended that his appeal was not vexatious, given his belief as to the defendants' purpose in pursuing the costs assessment.
Again, those submissions are relevant to the exercise of the Court's discretion, but it must be accepted that his conduct in advancing the extravagant allegations discussed by Barr AJ, which were finally not pursued is capable of being found to have involved an abuse of the Court's process and the interlocutory application by which these allegations were pursued, thus vexatious under s 6(c).

The strike out application

On 24 March 2014, Rothman J refused the defendants' strike out application and ordered Mr Mohareb to file a second further amended statement of claim "that seeks to comply with the orders of Harrison AsJ of 27 June 2013". Harrison J in Mohareb v Jankulovski [2014] NSWSC 451 dealt with the defendant's motion seeking to have the proceedings struck out and refusing Mr Mohareb leave to replead.
At the hearing, the defendants accepted, however, that Mr Mohareb's second further amended statement of claim pleaded a cause of action in defamation in unexceptionable terms, subject to one matter (at [9]). That was not accepted and Harrison J ordered the defendants to file their defence.
It must be accepted that Mr Mohareb did not conduct this litigation as expeditiously as it could have been, but nor did the defendants. His unchallenged evidence was that the delay also resulted in part from the parties' ongoing pursuit of settlement, after he failed to establish before Harrison J that a binding settlement agreement had been entered.

The dongles

In Mohareb v Jankulovski [2014] NSWSC 745, Harrison J then dealt with a claim for the return forthwith of dongles handed to Mr Mohareb on 4 February 2013. At [4] his Honour noted that the defendants contended that Mr Mohareb's entitlement to retain the disputed dongles was tied to the outcome of his claim to have the settlement agreement specifically performed. Because he was unsuccessful in that claim, the defendants claimed that the dongles that he had received from them, apparently in anticipation of the agreement being enforceable, had to be returned to them.
His Honour noted that Mr Mohareb accepted that the dongles had to be returned and made no order as to their return, in the expectation they would be returned within seven days.
Mr Mohareb's unchallenged evidence was that he had returned dongles, but that there had been some confusion about a third dongle. Further, the proceedings were then settled, following a mediation, on terms more favourable to him than he had earlier been prepared to accept.
I am also satisfied, in the result, that it is not open to conclude that Mr Mohareb's applications, other than those dealt with by Hidden J and Barr AJ, or his pursuit or conduct of the proceedings were vexatious, as defined in s 6. To the contrary, while the parties' pursuit of settlement accorded with their obligations under s 56 of the Civil Procedure Act, to assist the Court to facilitate the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings, there was resulting delay in the conduct of the proceedings.
That, however, did not make them vexatious.

The Palmer proceedings

These proceedings were also settled. Again, the Attorney argued only that some of the applications Mr Mohareb had brought were vexatious.
Both these and the Kelso proceedings resulted from the creation of a poster which was posted in various public areas at Scotland Island in 2014, where Mr Mohareb lives. The Attorney accepted that the poster was prima facie defamatory; that Mr Mohareb had a legitimate ground for complaint in relation to the conduct of some of his neighbours; and that it was not vexatious for him to seek legal redress in relation to various matters, including in relation to Mr Palmer's conduct.
The proceedings were commenced by statement of claim filed in the District Court in 2015. Mr Mohareb was not then legally represented. He eventually obtained such representation after a referral for pro bono assistance. The parties reached a settlement, after Gibson DCJ concluded that Mr Mohareb's claim was not unmeritorious on its face, which establishes, as the Attorney accepted, that the institution of the proceedings was not vexatious, they having had a reasonable basis.
That Mr Mohareb had difficulty in properly pleading his claims in defamation, difficult as that can be even for legally represented parties, was not suggested to be a basis on which a finding that these proceedings were vexatious could rest.
MFI 4 as finally pressed provided: "9. in Mohareb v Palmer, the delays and "unyielding approach to litigation generally" described by Gibson DCJ in Mohareb v Palmer [2015] NSWDC 134 at [5], [22], [26] (tab 12 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; 10. in Mohareb v Palmer, filing a notice of motion on 29 May 2015 seeking leave to prosecute Mr Palmer for perjury (see Mohareb v Palmer (No 2) [2015] NSWDC 141 at [79]-[83], at tab 13 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; 11. in Mohareb v Palmer, seeking leave to appeal from the decision of Gibson DCJ of 30 July 2015 (see Mohareb v Palmer [2015] NSWCA 369, at tab 14 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; 12. in Mohareb v Palmer, bringing a second application in the District Court for leave to prosecute Mr Palmer for perjury (see Mohareb v Palmer (No 3), unreported, Gibson DCJ, NSWDC, 4 March 2016, at tab 15 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; 13. in Mohareb v Palmer, serving a notice of intention to seek leave to appeal from the decision of Gibson DCJ of 4 March 2016 (see defendant's affidavit of 12 May 2016 at [2], at tab 23 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; l 13a. in Mohareb v Palmer, serving a summons seeking leave to appeal from the decision of Gibson DCJ of 4 March 2016 (at tab 44 of Exhibit SMJ-2). This was vexatious within the meaning of section 6(a), 6(c) and 6(d) of the VP Act; 14. in Mohareb v Palmer, serving a notice of motion seeking orders referring Mr Palmer to the Supreme Court for determination of an allegation of contempt (tab 25 of Exhibit SMJ-1)."
In Mohareb v Palmer [2015] NSWDC 134, Gibson DCJ gave reasons for rulings made on 5 March 2015, refusing to order the summary dismissal of the proceedings and directing Mr Mohareb to file a further amended statement of claim. Her Honour noted that while he had appeared unrepresented, he had obtained assistance in relation to the drafting of the pleadings (at [5]). At [22] her Honour observed: "22 There has been delay in this matter, which includes the failure of both parties to be ready on the last occasion, and there are defects in the statement of claim. The current statement of claim is a considerable improvement upon the poorly drafted document the plaintiff initially submitted to the court. A significant part of the delay in these proceedings has been the plaintiff's unyielding approach to the litigation generally."
The Attorney relied on this observation. The settlement which followed, however, evidenced an acceptance on Mr Palmer's part of Gibson DCJ's view that Mr Mohareb's case had merit. It also evidenced that Mr Mohareb had again abided by his obligations under s 56 of the Civil Procedure Act.
Difficulties then emerged, however, with the implementation of the settlement which the parties arrived at, which required that an apology to Mr Mohareb be published on a particular Facebook page. The evidence establishes that the difficulties were not of Mr Mohareb's making. They arose for consideration in Mohareb v Palmer (No 2) [2015] NSWDC 141, when the defendants' application was for orders to give effect to the agreement between the parties arising from their deed and the asserted publication of the agreed apology. Mr Mohareb's position then was that there had been no settlement; he wanted to continue the proceedings, although principally in the hope of obtaining a better apology (at [4]).
Gibson DCJ found at [51] - [53]: "51 It is clear that: (1) The parties reached a concluded agreement arising out of the Deed of Release which provided, as its central feature, for the publication of an apology and the vacating of costs orders; (2) The parties considered themselves bound by the terms of that deed, in which the terms were conditional upon the Apology being published "within 14 days of the Defendants' Solicitors, Kennedys, receiving a signed copy of the Deed from the Plaintiff" (paragraph 2.1); (3) The plaintiff signed the Deed and returned it, but the Apology was taken down by the Scotland Island Community Facebook page moderator, Mr Van Mierlo who, after explanatory emails from Mr Palmer, republished it and told Mr Palmer he had done so. However, later that same day, the Apology was removed a second time, in circumstances where I am comfortably satisfied that this was done by Mr Palmer; (4) At the time of this application being listed for hearing (23 April 2015) the Apology was still not on the website, and the 14 day period referred to in the deed had expired without the Apology being published. 52 However, it is also clear from the parties' submissions that they wish to achieve some form of settlement which includes the vacating of costs orders and a very similar apology (the sticking points for the plaintiff seem to be his photograph, the paragraphing and a second apology from Mrs Palmer). 53 The issue is whether, in these circumstances, there is in fact a concluded agreement pursuant to s 73 and, if not, whether this litigation can be resolved on some other basis, given that the apology in question has now been published."
Her Honour finally dismissed the proceedings under s 61 of the Civil Procedure Act, as well as the parties' respective motions, having concluded at [68] that while not satisfied that the defendants had complied with their end of the parties' bargain in the timeframe allotted, the nature of the issues of reputation loss had been so reduced by the eventual publication of an apology, as to warrant the exercise of the discretion to dismiss the proceedings.
Mr Mohareb had also applied for leave to prosecute Mr Palmer for perjury, which he alleged Mr Palmer had committed while giving his evidence. That application was refused, her Honour concluding at [83] that he "was unable to identify with precision what evidence given by the first defendant today was perjury".
Mr Mohareb appealed Gibson DCJ's judgment. While unrepresented before Gibson DCJ, he was represented on this appeal and later, when further applications were pursued in the District Court.
As described by the Court of Appeal in Mohareb v Palmer [2015] NSWCA 369 at [3] - [7], given in November 2015, the difficulties which had led to the proceedings before Gibson DCJ were that it had been agreed that Mr Palmer would publish the apology to Mr Mohareb on the Facebook page of the Scotland Island Community. He posted an apology to that Facebook page on 1 April 2015, but it was taken down by the moderator of the page on the same day. Early on the following morning the moderator stated that he would not allow the post and that Mr Palmer would be banned from the page if he attempted to post it again. Mr Palmer replied and by email sent at 8.48am the moderator responded: "we will reinstate your post". This was apparently done, however, between that time and 10.26 pm, the post was removed. It was subsequently restored on 1 May 2015.
It was these events which gave rise to the dispute as to whether there was a binding agreement; whether Mr Palmer's obligation to publish an apology had been satisfied; whether he was entitled to an order that the underlying proceedings be dismissed with no order as to costs; and whether he had perjured himself. It was in support of the motion for dismissal of the proceedings that Mr Palmer sworn an affidavit and then gave evidence, in which Mr Mohareb alleged that he had perjured himself.
The summons seeking leave to appeal was dismissed, the Court of Appeal concluding that while Mr Mohareb had identified the basis of his allegation of perjury in his submissions, her Honour was, nevertheless, correct to dismiss the application, Mr Mohareb not having clearly identified the perjury charge which he sought to bring against Mr Palmer.
Mr Mohareb then made a further application to have Mr Palmer dealt with for perjury, which Gibson DCJ refused in Mohareb v Palmer (No 3), given what she considered to be significant obstacles to the alleged perjury being proven. She also dismissed Mr Palmer's motion seeking orders that the statement of claim be dismissed and orders for security for costs. The hearing of the appeal from this judgment proceeded in the Court of Appeal on 29 November.
Mr Mohareb also filed a further motion, seeking to have Mr Palmer referred to this Court to have an allegation of contempt dealt with. In his supporting affidavit, Mr Mohareb claimed that Mr Palmer had physically assaulted him, with the intention of intimidating him into ceasing to pursue legal proceedings against him. He relies on a recording of the altercation to support that application.
The Attorney submitted that Mr Mohareb's pursuit of motions seeking leave to prosecute Mr Palmer for perjury, as well as the contempt motion and what Mr Mohareb has said in affidavits sworn in the District Court proceedings, established that these aspects of the proceedings were vexatious.
The Attorney accepted that consideration had to be given to Mr Palmer's conduct. That Mr Mohareb was at times represented by counsel was also accepted to be relevant, that putting the proceedings into "a different category", as observed in Viavattene at [65]. That, the Attorney accepted, was a matter deserving to be given particular weight, especially in the exercise of the Court's discretion, if it was concluded that the proceedings were vexatious.
In his submissions Mr Mohareb said that he had no burning desire to pursue a private criminal prosecution against Mr Palmer and so the Attorney argued in written submissions, that the only explanation for the many applications Mr Mohareb had made, was that he was driven by a personal desire to punish Mr Palmer, even though the substantive proceedings had been settled and he acknowledged that the defamatory poster had not originated with Mr Palmer.
Thus it would be concluded, it was submitted, that these proceedings fell within s 6(d), having been conducted to harass and annoy Mr Palmer, even if that required intention. That followed, it was argued, from Mr Mohareb's lack of insight, in asserting that Mr Palmer had attempted to dissuade him from pursuing the perjury allegation, rather than simply venting his anger. This was submitted to be another example of Mr Mohareb "using sledge hammers rather than nut crackers" (T 24).
These submissions cannot be accepted.
While unrepresented, but after obtaining legal advice in relation to his pleadings, Mr Mohareb made and pursued what was on its face, it is accepted, defamatory, as he was lawfully entitled to do and for which he is not criticised by the Attorney.
Mr Mohareb settled that claim on terms which Gibson DCJ found that Mr Palmer later undermined. Mr Mohareb then made a serious allegation that Mr Palmer had perjured himself in the course of giving evidence about the steps which Gibson DCJ found he had taken. That, too, involved the exercise of Mr Mohareb's undoubted legal rights.
Mr Mohareb's evidence was that he had settled the proceedings on terms which were not entirely satisfactory to him, but favourable to Mr Palmer, being the publication of the apology on Facebook. It was Mr Palmer who then didn't comply with the agreement. Mr Mohareb considered his conduct to have been dishonourable. He also believed that Mr Palmer had perjured himself when giving evidence about the implementation of the agreement, evidence which Gibson DCJ did not accept. He had in the past been advised that perjury could be referred to police for investigation, but found that no action had been taken. As a citizen he understood that he also had the right to seek to have such perjury, a serious matter at law, dealt with, and so decided to seek leave himself to pursue Mr Palmer's perjury.
Mr Mohareb is correct. 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.
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.
That after the Court of Appeal's judgment in Mohareb v Palmer [2015] NSWCA 369, 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, 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.
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.
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. The result of the grant of leave to appeal Gibson DCJ's third decision was that the Attorney accepted that any orders made in these proceedings, should not apply to any relief which may be granted Mr Mohareb by the Court of Appeal.
I consider that it also follows that it cannot be concluded that Mr Mohareb has conducted these proceedings so as to harass or annoy Mr Palmer, as the Attorney contended. The exercise of his rights to allege the perjury he has pursued in the circumstances I have discussed, simply does not leave that conclusion open, that not being wrongful, in the way I have discussed.
Similarly with the making of an allegation of contempt against Mr Palmer. Unless patently groundless, the mere making of such an allegation cannot ground a conclusion that its pursuit is vexatious.
The circumstances are that there is a recording of what the Attorney described to have been a "contre temps" between Mr Mohareb and Mr Palmer, which unarguably became physical.
On Mr Mohareb's evidence, he believes that he was attacked by Mr Palmer over his further appeal from Gibson DCJ's third judgement, in respect of which he has been given leave, in order to dissuade him from pursuing his allegation of perjury. If that were proven, the contempt involved would obviously be serious.
For the Attorney it was submitted that the recording showed both Mr Palmer and Mr Mohareb behaving in "an unfortunately provocative manner"; that while it was apparent that the altercation had become physical, it was not clear that Mr Mohareb had been assaulted; nor did it show that Mr Palmer's purpose was to discourage or prevent him from pursuing his appeal. It would thus be concluded that the contempt application was conducted in a way so as to harass and annoy Mr Palmer.
Those submissions also cannot be accepted.
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.
An application such as this, to have Mr Mohareb declared vexatious, is certainly not the proceedings in which the question of whether Mr Palmer committed the contempt Mr Mohareb has alleged, arises to be determined.
That if the result of the exercise of the right to make the application to have alleged contempt dealt with, is that Mr Palmer may be punished if the contempt is proven, also cannot make Mr Mohareb's application vexatious.
On the evidence the allegation cannot simply be dismissed as spurious, given all that I have already discussed and Mr Mohareb's evidence being partly corroborated as it is, by what can be seen and heard on the recording.
That Mr Mohareb can be heard saying angrily "I am going to take this as far as it can go", in circumstances where he could have sought an AVO against Mr Palmer, but did not, certainly does not establish either that Mr Mohareb was not attacked as he claims, or that there was no contempt involved on Mr Palmer's part.
In the result, I am satisfied that there is no basis in what has unfolded in the Palmer proceedings in either the District Court, or the Court of Appeal, for a conclusion that either the District Court proceedings, or the interlocutory applications which Mr Mohareb has pursued, were vexatious, as defined in s 6.
The order sought by the Attorney cannot rest on these proceedings.

The Kelso proceedings

Again, the Attorney does not contend that these proceedings were themselves vexatious, but argues that particular applications which Mr Mohareb has brought were. This was another example of the Attorney's case that Mr Mohareb is prone to overreact in the way that needs to be stopped. That Mr Mohareb has a tendency, often through ignorance of the law, to react adverse conclusion which others may not reach, may be accepted. That the result is that his conduct of these proceedings have been vexatious, may not.
MFI 4 as finally pressed provided: "19. in Mohareb v Alexander Kelso, seeking to join additional defendants in relation to the allegations summarised at subparagraph (a) of Mohareb v Kelso [2016] NSWDC 208 at [55], This was vexatious within the meaning of sections 6(c) of the VP Act. 20. in Mohareb v Alexander Kelso, seeking to join additional defendants in relation to the allegations summarised at subparagraphs (b) to (n) of Mohareb v Kelso [2016] NSWDC 208 at [55]. This was vexatious within the meaning of sections 6(a). 6(c) and 6(d) of the VP Act."
The Attorney accepted that while poorly pleaded, given the lack of particulars, the allegations Mr Mohareb made were capable of amounting to a cause of action, if properly pleaded, although why the proceedings were brought in the District Court, given that only $20,000 was claimed, was not apparent. That concession was properly made. The defamation claim relates to the poster earlier discussed.
The Attorney finally relied on the delay in the joinder application, which was accepted to be "a more minor matter", to submit that these proceedings were vexatious, as defined in s 6(d), although accepting that such delay was not uncommon among non-vexatious litigants.
The attempt to join Mr Alexander Kelso's employers as defendants liable for his alleged conduct when driving the water taxi and swerving sharply towards Mr Mohareb, was also submitted to be vexatious, although it was accepted that "a non-lawyer might be forgiven for believing that it is arguable that employers might be liable for anti-social conduct engaged in by an employee using the tools of his or her employment, at least where that conduct could be reasonably anticipated by the employer".
The attempt to sue persons who Mr Mohareb understood were Mr Alexander Kelso's employers, for other alleged conduct, which has nothing to do with his employment, was submitted to have been apparent even to a non lawyer, as not being maintainable.
The circumstances are these.
When commenced in July 2014 these proceedings for damages for alleged assault, trespass to goods and/or defamation, were brought in error against John Alexander Kelso, (the father of Alexander Edward Kelso, who Mr Mohareb alleges defamed him and committed the other acts he complains of), and two corporate entities, Saratoga Marine Pty Ltd and Satratoga Integration Pty Limited, trading as Pink Water Taxis. On Mr Mohareb's evidence, the commencement of proceedings against Mr John Alexander Kelso, was the result of confusion on his part as to the son's full name. He later corrected that error.
There is no reason to doubt that evidence.
Mr Mohareb obtained default judgment on 20 August 2014, which was set aside in December, Mr Mohareb having been sent a request for particulars on 5 August, which on his evidence he had not received. His evidence was also that he had received legal advice that he had good prospects of resisting the application to set aside the default judgment.
In Mohareb v Kelso; Mohareb v Booth, given in September, Gibson DCJ dealt with Mr Mohareb's application for orders permitting the addition of named defendants and the inclusion of further claims of trespass to property and assault, as well as a an application by the defendants for a stay, pending resolution of this application.
Her Honour considered that there had been an unacceptable history of delay in Mr Mohareb's conduct of the application for leave to amend and to join additional parties, which he had first foreshadowed in February 2016 (at [22]).
Her Honour refused the application to join new parties and to amend the statement of claim in relation to their asserted liability for Mr Kelso's alleged acts, which she found to be so hopeless as to satisfy the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. Her Honour refused at [69], however, to grant the stay sought by the defendants. At [73] leave to make the other amendments sought was also refused.
Mr Mohareb has indicated an intention to appeal Gibson DCJ's decision. The Attorney accepted that any order made in these proceedings could carve out such an appeal.
Still, the Attorney's position was that while the actions of those responsible for the poster could not be condoned, Mr Mohareb's pursuit of the addition of the other defendants having failed as it did, not only would it be concluded that his application was vexatious, but that any further application to bring proceedings in respect of the poster by which he had been defamed, should only be by leave of the Court.
I am, again, satisfied that the Attorney's submissions cannot be accepted.
Mr Mohareb's pursuit of Mr Alexander Kelso is not suggested to be vexatious. That he has attempted, but failed, to have persons who he understands to be Mr Kelso's employers joined as defendants in the proceedings reflects, on his evidence, his belief that the employers had relevant knowledge of Mr Kelso's misconduct towards him during the course of his employment and failed to exercise control of his activities, which as his employer, they could and should have.
Gibson DCJ did not accept that Mr Mohareb had a legal foundation for the claims which he sought to advance against those persons, notwithstanding his beliefs, but that alone does not, in my view, leave open the conclusion that his joinder application was vexatious.
From Mr Mohareb's arguments, it is apparent that he misunderstood aspects of the applicable law, given analogies he sought to explain by reference to other decided cases.
As the Attorney's case accepted, Mr Mohareb plainly did not have a complete understanding of the legal questions which her Honour had to resolve, but such a misunderstanding of undoubtedly complex legal questions does not inevitably lead to the conclusion that the joinder application was vexatious.
It is relevant that there is no suggestion that Mr Mohareb has ever sought to pursue proceedings in respect of matters about which he does not have legitimate complaints, or against persons unconnected with the matters he complains about, except in the case of Mr Alexander Kelso's father. That was the result of confusion over the name, earlier discussed.
In the result it cannot be concluded that the joinder application was vexatious.
Even if I were wrong in that conclusion, the circumstances I have discussed would tell against the exercise of the discretion to make the orders which the Attorney finally pressed.

Has Mr Mohareb instituted or conducted vexatious proceedings frequently?

As I explained at the outset, what was finally relied on to establish that Mr Mohareb had frequently instituted and conducted vexatious proceedings was within a much smaller compass than when the proceedings were commenced. In written submissions, the Attorney conceded that the number of proceedings on which the case against Mr Mohareb was advanced, were not great.
Nevertheless, it was argued, the word "frequently" as used in s 8(1)(a), is a relative term, the meaning of which turns on its context and that "the quality of the vexatiousness of a proceeding and the nature of the proceeding itself, inform the assessment of frequency" (see Potier v Attorney General NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129 at [114] - [118]).
As Ball J discussed in Siteberg v Maples [2010] NSWSC 1344, most individuals do not become involved in court proceedings. "Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently" (see at [31]).
Even so, given the narrow compass of the case which the Attorney finally pursued against Mr Mohareb, and the conclusions I have reached in relation to the very small number of interlocutory applications which I have found vexatious, I am satisfied that it is not open to conclude that Mr Mohareb has "frequently" instituted or conducted such proceedings.
In the result no basis for the making of the orders finally pressed by the Attorney has been established.

Discretion

The conclusions I have reached do not provide any basis for the exercise of the discretion to make any orders under the Act against Mr Mohareb and thus the application must fail.

Orders

The usual order under the Civil Procedure Rules 2005 (NSW) is that costs follow the event. In the case of an unrepresented litigant such as Mr Mohareb, that is an order that the Attorney bear his disbursements, as agreed or assessed. Unless the parties approach to be heard within 14 days, that will be the Court's order.
Otherwise, I order that the Attorney's application be dismissed.

Amendments 19 December 2016 - typographical errors in [25] - Simpson J changed Simpson J's [38] - paragraph 6(b) changed to paragraph (6(c) [39] - Beazley J changed to Beazley P [111] - Harrison J's changed to Harrison AsJ's DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2016

Legal Profession Act 2004(NSW)

Civil Procedure Rules 2005(NSW)

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 Viavattene v Attorney General (NSW) [2015] NSWCA 44 YZ Finance Co Pty Ltd (1964) 109 CLR 395; [1964] ALR 667 Category: Principal judgment Parties: The Attorney General for the State of New South Wales (Plaintiff) Nader Mohareb (Defendant) Representation: Counsel: M J Emmett (Plaintiff)

The Attorney General's case

The litigation on which the Attorney's case was finally advanced was: 1. Queensland proceedings brought in relation to Mr Mohareb's former employment, in which his various pleadings were struck out and he was finally refused leave to replead (see Mohareb v Lambert and Rehbein [2009] QSC 324 and [2010] QSC 126); 2. Proceedings brought in this Court against Mr and Mrs Jankulovski for defamation, in which Mr Mohareb was unrepresented, which, before settlement, were dealt with by: 1. Harrison J in Mohareb v Jankulovski [2012] NSWSC 487, where Mr Mohareb's amended statement of claim was struck out and he was given leave to file a further amended statement of claim; 2. Harrison AsJ in Mohareb v Jankulovski [2013] NSWSC 850, where Mr Mohareb's motion seeking an order for specific performance of a claimed settlement agreement was struck out; his further amended statement of claim was struck out; he was given leave to replead part of his claim; and he was ordered to provide $5,000 for security for costs and the proceedings were stayed until the security was given; 3. The Court of Appeal in Mohareb v Jankulovski [2013] NSWCA 462, in which Mr Mohareb was refused leave to appeal Harrison AsJ's judgment; 4. Barr AJ in Mohareb v Jankulovski & Anor [2013] NSWSC 1300, in which a summons by which he sought leave to appeal a costs assessment was dismissed; 5. Harrison J in Mohareb v Jankulovski [2014] NSWSC 451 where the defendants sought to have the proceedings struck out for want of prosecution, but they were ordered to file their defence to Mr Mohareb's second further amended statement of claim; and 6. Harrison J in Mohareb v Jankulovski [2014] NSWSC 745 in which Mr Mohareb accepted he had to return two dongles to the defendants, which had been referred to in the proceedings before Harrison AsJ by Gibson DCJ 1. Proceedings brought in the District Court against Mr Palmer for defamation and assault, in which Mr Mohareb has on occasions been represented, which have been dealt with by: 1. Gibson DCJ in Mohareb v Palmer [2015] NSWDC 134, where an application for summary dismissal of Mr Mohareb's case was refused, given the difficulties for an unrepresented litigant in properly pleading a claim for defamation, which was not accepted as being unmeritorious on its face; 2. Gibson DCJ in Mohareb v Palmer (No 2) [2015] NSWDC 141, where the proceedings were dismissed following a settlement and Mr Mohareb was refused leave under s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute Mr Palmer for perjury; 3. The Court of Appeal in Mohareb v Palmer [2015] NSWCA 369, in which leave to appeal Gibson DCJ's judgment in Mohareb v Palmer (No 2) was refused, because in the District Court Mr Mohareb had not clearly identified the perjury charge he had sought leave to pursue against Mr Palmer; 4. Gibson DCJ in Mohareb v Palmer (No 3) [2016] NSWDC 38 in which a further application for leave to prosecute Mr Palmer for perjury was refused; 5. The Court of Appeal, leave to appeal from Gibbs DCJ's judgment in Mohareb v Palmer (No 3), being granted and the appeal having been heard on 29 November; and 6. An application has also been made by Mr Mohareb to have Mr Palmer referred to this Court to be dealt with for alleged contempt, which has not yet been dealt with. 1. Proceedings brought in the District Court against John Kelso, Saratoga Marine Pty Ltd and Saratoga Integration Pty Ltd, trading as Pink Water Taxis, Mr Mohareb claiming to have been harassed, intimidated, defamed and bullied and his property damaged and vandalised, in which a default judgment Mr Mohareb had obtained was set aside and where he eventually accepted that the proceedings against Mr Kelso had been brought by mistake, with the result that the named defendant is now Alexander Kelso. They were dealt with by Gibson DCJ in Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208, when amongst other things leave to join other defendants was refused.

Whether judgements admissible under s 91 of the Evidence Act

The Attorney also raised a question as to the admissibility of the judgments sought to be relied on to establish the case against Mr Mohareb, even though he had not objected to their tender. That was properly raised, given that Mr Mohareb appeared unrepresented on this application. The issue arose under s 91 of the Evidence Act 1995 (NSW), which provides: "91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose."
In Attorney General in and for the State of New South Wales v Markisic [2012] NSWSC 433, I held at [72] that s 91 of the Evidence Act did not preclude a judgment being tendered as evidence in other proceedings, other than as proof of the existence of facts found in the proceedings in which the judgment was given.
In Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596, I said the Attorney was not entitled to rely on the judgments to which objection was taken (at [66] - [67]): "66 … to prove the existence of a fact in issue in the proceedings to which they related, as was accepted at the hearing. They can, however, be relied on to establish in these proceedings that the earlier proceedings were vexatious, as defined in s 6 of the Vexatious Proceedings Act, that not having been a matter in issue in any of the earlier proceedings. 67 As discussed by Adamson J in Chan at [47], where the tender of judgments in other proceedings in which the defendant had been involved was also sought to be relied on to establish that the defendant had been involved in vexatious proceedings: "47 ... [t]he judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant's conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendant's objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose."
The Attorney drew attention to different views reached by Simpson J in Attorney General of New South Wales v Martin [2015] NSWSC 1372, as to the operation of s 91. There her Honour concluded at [29] that in the case of each judgment sought to be relied on, "a preliminary question will be whether the judgment is admissible having regard to the provisions of s 91 of the Evidence Act".
Her Honour concluded that the decision of a Commissioner of the Land and Environment Court in Martin v NSW Department of Industry and Investment [2009] NSWLEC 1447 was not admissible. There, the Commissioner had to deal with, amongst other things, an application to have the proceedings struck out under Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The Commissioner concluded that the proceedings should be dismissed on the grounds that they would be vexatious and frivolous if they were to proceed further; there was no reasonable cause of action; and they were an abuse of process.
Simpson J's view turned on the conclusion that the Commissioner's findings as to those matters were "findings of fact", which were "the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(c)" (at [38]). Her Honour thus concluded (at [40] - [41]) that: "40 Since the Attorney General may not rely upon those findings of fact by Commissioner Dixon to establish the facts she seeks to establish for the purposes of s 6 of the Vexatious Proceedings Act, it is appropriate, if the evidence permits, that I make that judgment myself, without recourse to the findings of fact of Commissioner Dixon: see Teoh (No 8) at [51]; Chan at [39]. In this instance, that is not possible. All that is before me is the Summons and the proposed Amended Summons; there was, as indicated above, affidavit and documentary evidence before Commissioner Dixon which appears to have been material to her determination. Although both the Summons and the proposed Amended Summons contain some prayers for relief that are, perhaps, questionable, I am not in any position to determine that they come within any of the paragraphs of s 6. That conclusion could only be reached by having recourse to the judgment of Commissioner Dixon. 41 Absent reliance on the findings of fact by Commissioner Dixon, I cannot find that the principal proceedings were vexatious."
Those conclusions have to be considered in light of the observations in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125, as to which Simpson J observed at [91], that the Court of Appeal had not had necessary regard to the requirements of s 91 of the Evidence Act, to which no reference had been made in the Court's judgment. There it was said by the Court of Appeal at [50] - [54]: "50 Secondly, a number of decisions have held that it is necessary for the Court considering an application under the VP Act to form its own judgment about each proceeding said to satisfy the definition of 'vexatious proceedings', but that in doing so the Court may take into account the findings and views expressed by the judicial officers who resolved each of the proceedings: Attorney General of New South Wales v Croker [2010] NSWSC 942 at [125] (Fullerton J) (following the views expressed by Patten AJ in Attorney General v Bar-Mordecai [2005] NSWSC 142 at [5] in relation to s 84 of the [Supreme Court] Act [1970]); Attorney General v Chan [2011] NSWSC 1315 at [39] (Adamson J) (and other cases cited there); Attorney General of New South Wales v Martin [2013] NSWSC 442 at [9] (Hidden J) (citing Attorney General v Chan at [39]). 51 Section 8(1)(a) of the VP Act requires the authorised court to be satisfied that the person against whom an order is sought has frequently instituted or conducted vexatious proceedings in Australia. To be so satisfied, the court must identify the vexatious proceedings that have been instituted or conducted by that person and make a finding as to whether he or she has instituted or conducted such proceedings 'frequently'. A necessary element in this process is making a finding as to whether each of the proceedings relied on (or a sufficient number of them) satisfies the definition of 'vexatious proceedings' in s 6 of the VP Act. 52 Section 6 does not specify the matters that the court dealing with the application under the VP Act should take into account in determining whether particular proceedings were, for example, an abuse of the process of the court (s 6(a)) or instituted without reasonable ground (s 6(c)). There is nothing in the language of s 6 to indicate that a finding by the court in the earlier proceedings that they were an abuse of process or instituted without reasonable grounds is determinative on an application under the VP Act. Equally, there is nothing to indicate that a finding made or view expressed by the court in the earlier proceedings is to carry no weight on an application under the VP Act. 53 Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. It would be an odd result if such a determination simply has to be ignored by a court hearing an application under the VP Act. The oddity of the result is reinforced by the likelihood that an application under the VP Act would be prolonged if the findings made and views expressed in the earlier proceedings could not be taken into account. Indeed there would be a real risk that the court would be burdened with litigation of issues of the very kind that the legislation is designed to avoid. 54 On the other hand, the seriousness of the consequences of making a vexatious proceedings order supports a construction of ss 6 and 8 of the VP Act that leaves it open to the court hearing an application for a vexatious proceedings order to depart from the findings made in the earlier proceedings. However, in the ordinary course it would require very persuasive material to justify such a departure."
In Martin, Simpson J did receive other judgments in evidence, because they did not contain findings of any fact in issue in the vexatious proceedings which she had to deal with and were relevant to what was in issue on the application under the Vexatious Proceedings Act.
For example, a judgment of Biscoe J in Martin v NSW Minster for Mineral and Forest Resources [2010] NSWLEC 131 was admitted. There his Honour had to deal with an argument that the decision which was challenged in the proceedings had been made by a person who lacked appropriate authority. Her Honour noted that the Court of Appeal had concluded that Biscoe J was clearly correct (see Martin v State of NSW (No 9) [2011 NSWCA 286).
I find myself in disagreement with Simpson J's approach to the construction of s 91.
The term "finding of fact" is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.
As discussed in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 395 whether "facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law". So, too, I consider, are questions which arise under Rule 13.4 of the UCPR, as to whether particular proceedings either generally, or in relation to any particular claim, are "frivolous or vexatious", or disclose "no reasonable cause of action", or involve "an abuse of the process of the court". If not questions of law they are at least mixed questions of law and fact.
The judgment which her Honour refused to admit was one where in issue was the question of whether proceedings brought in the Land and Environment Court were vexatious and frivolous, had no reasonable cause of action and were an abuse of process. The conclusion which the Commissioner came to, rested on facts found, but the decision was not sought to be tendered in the vexatious proceedings in order to prove the existence of facts that were in issue in the Land and Environment Court proceedings.
Rather, the decision was tendered to prove that Mr Martin was a party to the proceedings; that they had been dismissed; that this had been the result of the conclusions reached by the Commissioner, that the proceedings would be vexatious and frivolous if they were to proceed further; that there was no reasonable cause of action; and that they involved an abuse of process.
As found in Teoh, decisions of that kind are admissible in proceedings brought under the Vexatious Proceedings Act. Views expressed in such decisions are not binding, but they are relevant to what arises to be decided in proceedings under that Act, not because they are tendered in order to prove the existence of a fact that was in issue in the earlier proceedings, but rather, to establish the fact that the earlier proceedings existed, that the defendant was a party to them, how they were resolved and in some cases, the views the presiding judge expressed on matters which also fall within the definition of "vexatious proceedings". That term is defined in s 6 of the Vexatious Proceedings Act to include: "(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 conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
All of those matters also involve questions of law. They must certainly be decided on facts found, but conclusions reached in the earlier proceedings on those questions are not themselves "findings of fact". Nowadays, given obligations such as those imposed by s 56 of the Civil Procedure Act 2005 (NSW), conclusions that particular proceedings, or an aspect of them, involve an abuse of process; were instituted or conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or were instituted or pursued without reasonable ground, are not infrequently reached in judgments given both at interlocutory and final stages of the proceedings.
That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.
That approach accords, I consider, with the observations of Allsop P in Kable v State of New South Wales (2012) 268 FLR 1; [2012] NSWCA 243 at [3] - [4], where his Honour observed as to the tender of the judgment in Kable v The Director of Public Prosecutions for the State of New South Wales [1996] HCA 24; 91996) 189 CLR 51: "4 These are not expressions of matters res inter alios acta. These are not findings of fact sought to be utilised impermissibly in another proceeding contrary to the Evidence Act 1995 (NSW), s 91. These are the conclusions of the majority of the High Court justices essential to the reasoning as to the unconstitutionality of the statute in Mr Kable's suit against the Director. The State of New South Wales appeared in Kable by and through the Solicitor General. The reasoning stands as determinative of the character of the "orders" of this Court and of the character of the functions, processes and authority exercised or purported to be exercised by this Court in 1995."
Conclusions reached in earlier proceedings as to matters which fall into the s 6 definition of "vexatious proceedings" are not findings of fact which are impermissible to rely on in later proceedings brought under the Vexatious Proceedings Act, given the provisions of s 91 of the Evidence Act.

The proper construction of s 6 of the Vexatious Proceedings Act

Section 8(1) provides that the Court may make a "vexatious proceedings" order in relation to a person, if satisfied that: "(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia."
The term "vexatious proceedings" is defined in s 6, quoted above. "Proceedings" is defined in s 4 to include: "(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
"Instituting" proceedings is dealt with in s 5, which provides: "(1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal - the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal."
The Attorney's case was that some of the paragraphs of the definition in s 6 were concerned with objective matters, paragraph 6(c) for example (see Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [19]) and some subjective, paragraph (b) for instance (see Attorney General v Chan [2011] NSWSC 1315 at [33]; Pascoe v Liprini [2011] NSWSC 1484; Attorney-General v Tareq Altaranesi at [20]).
In Viavattene v Attorney General (NSW) [2015] NSWCA 44 Leeming JA, with whom Beazley P and Basten JA agreed, concluded that the appeal should be upheld and limited orders under the Vexatious Proceedings Act should be made against Mr Viavattene, rather than the "blanket orders" which had been made at first instance. Both Basten JA and Beazley P there also made observations as to the proper construction of s6, but all three members of the Court considered that it was not appropriate in that case to determine its proper construction.
That has arisen for determination in this case.
What is in issue is whether Basten JA's approach to the construction of the section in Viavattene was correct and should be followed, with the Attorney contending that it was not. Basten JA observed as to the construction of s 6 (at [14] - [19]): "14 Although the definition is not expressed to be exclusive, for reasons considered under the next heading, one might expect it to be rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6. Secondly, as has been remarked in a number of cases, the separate paragraphs are not to be construed as independent and self-contained categories. For example, most proceeding which would fall within pars (b)-(d) would constitute an abuse of process for the purposes of par (a). If for no other reason, one would be cautious before identifying significant differences in the approach to different paragraphs based on minor changes in wording from one paragraph to another. 15 Unfortunately, such an approach is revealed in some of the authorities. Thus in Pascoe v Liprini [2011] NSWSC 1484 the Court stated at [10]: "These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes a subjective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the Court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not." 16 One difficulty with this passage is that the most substantial difference between pars (b) and (d) is that the former deals with the institution of proceedings and the latter with their conduct. The fact that par (d) is not concerned with subjective intention (if that be the case) will not, in most cases, have the relieving effect identified. 17 More importantly, it is not easy to see why a concern with subjective intention is to be inferred from the words of par (b), but rejected by reference to the words of par (d). There are indeed differences in the language used (other than the operative verb), but those differences are unlikely to be material in the sense identified. First, par (b) speaks of proceedings "instituted to" harass or annoy etc; par (d) speaks of proceedings conducted "in a way so as to" harass, annoy, etc. Secondly, the four identified elements are grouped in two pairs in par (b), but treated as a set in par (d). Why the drafter adopted these variations is unclear, but no change in meaning should be inferred. Thirdly, the final catchall phrase is expressed in par (b) as being "for another wrongful purpose" and in par (d), picking up the continuation of the words "so as to", continues "achieve another wrongful purpose." Again, the variation in language is unexplained but immaterial. 18 Once it is recognised that the only significant difference between the two paragraphs is that the former is dealing with the institution of proceedings and the latter their conduct, to treat one as requiring a subjective intention and the other as an objective effect is to impose a distinction which the language does not bear and a purposive approach would not support. The point may be illustrated by the discussion of abuse of process in Williams v Spautz [1992] HCA 34; 174 CLR 509. The judgments in that case are littered with references to proceedings being "instituted and maintained for an improper purpose" (see, eg, p 521 (Mason CJ, Dawson, Toohey and McHugh JJ)). Although it may be necessary to distinguish between a plaintiff's intention and motives (see, eg, pp 534-535 (Brennan J)), the key is to identify a subjective "purpose" that is "foreign to the nature of the process": Brennan J at p 533, quoting Isaacs J in Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; 20 CLR 509 at 522. The words "wrongful purpose" in both pars (b) and (d) include the subjective element of improper purpose. Similarly, the language of "harass" and "annoy" each suggest the possibility of a purpose other than that for which the proceedings are designed, although, again, it may be necessary to distinguish an entirely properly purpose pursued with a malicious motive, from an improper purpose. It is at least arguable that proceedings used for an entirely proper purpose will not be vexatious, whatever the motive of the moving party (or the opposing party). 19 On the other hand, whether pars (b) and (d) would be satisfied by an objectively demonstrated outcome, absent any improper purpose, is less clear. If one takes the words "cause delay or detriment" in isolation, such a construction is open; however, read as part of a composite set of concepts, apparently characterised by the phrase "wrongful purpose", mere objectively determined effects or consequences may not be sufficient. (A different conclusion would be available with respect to par (c).)"
Basten JA did not consider that the approach to the construction of the section in Pascoe v Liprini and in Attorney-General v Tareq Altaranesi at [20] was persuasive. In the latter case, the view taken by Slattery J was: "[20] Paragraphs 6(b) and (d) of the Act also represent related categories. They refer to the same underlying conduct "to harass or annoy, cause delay or detriment". Paragraph 6(b) refers to the actor's subjective intentions, whereas sub-paragraph 6(d) does not; rather paragraph 6(d) is concerned with the effect and consequences of action rather than the motive or design for action: Liprini at [10]. Thus, the Court does not have to determine whether or not a defendant has a subjective intention to "harass or annoy, to cause delay or detriment" by proceedings: only that this is the consequence of the defendant's litigious conduct."
Beazley P took a somewhat different view, observing in Viavattene at [3] - [4]: "3 There are at least two first instance decisions in which para (d) has been construed as not requiring the court to determine whether the defendant in proceedings under the Act subjectively intended to act in such a way as to "harass or annoy, cause delay or detriment, or to achieve another wrongful purpose": see Pascoe v Liprini [2011] NSWSC 1484 at [10] per Adamson J; Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] per Slattery J. 4 Basten JA, at [22], has raised a question whether this is a correct construction of s 6(d). In particular, his Honour has indicated that the elements of "harass and annoy" in s 6(d) would appear to require that subjective intent of the defendant to "harass and annoy" be established. I do not consider that this is necessarily the correct construction of s 6(d). However, as his Honour states, if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to "achieve another wrongful purpose" requires an intentional element."
I find myself in disagreement with Basten JA.
The function of a definition section such as s 6 is ordinarily to indicate that when particular words or expressions are used in the substantive part of the statute under consideration, they are to be understood in the defined sense as including certain things which, but for the definition, they would not include (see Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; [1966] HCA 74 at 63). Such a definition must not be given a narrow, literal meaning, which is then used to negate the evident policy or purpose of a substantive enactment. The proper course is "to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome" (see Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103]).
In this case that requires consideration to be given to the purpose of the Vexatious Proceedings Act, identified in Teoh v Hunters Hill Council (No 8) at [56] to be to give the Court the power to make orders "to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits".
The power granted by s 8, is to make a "vexatious proceedings" order. That term is defined in s 6, it will be remembered, as including: "(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 conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
It is relevant to the construction of this definition that it is specified to be an inclusive one. Ordinarily the use of the word "includes" is understood as enlarging the ordinary meaning of the defined words (see Gardner v R (2003) MVR 308; [2003] NSWCCA 199). Where, however, some items in a definition would fall within the ordinary meaning of the defined terms and some would not, then it may be the case that the definition is an exhaustive one (see YZ Finance Co Pty Ltd (1964) 109 CLR 395; [1964] ALR 667 for example).
In this case it is not obvious that the term "vexatious proceedings" has a settled ordinary meaning and accordingly, the conclusion that the definition in s 6 is an exhaustive one, does not seem to be available. As discussed in Re Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67 at 353 the fact that matters falling within the term can be identified, additional to those listed in a definition, suggests that it is not exhaustive. This is such a case.
In Viavattene, Basten JA did not consider the definition to be exhaustive, but he did observe that it would be rare for a court to treat proceedings as "vexatious proceedings", unless they could fairly be characterised as falling under one of the four descriptions in s 6. His Honour also took the view that there were only "minor changes" in wording in the four paragraphs of the definition, with the result that both the institution of proceedings (paragraph (b)) and their conduct (paragraph (d)), "in order to harass or annoy, to cause delay or detriment, or for another wrongful purpose", properly construed, are concerned with subjective intention.
I do not agree with that conclusion, but even if correct, given that the definition is an inclusive one, it leaves open the possibility that particular proceedings have been conducted in such a way that it is open to conclude that the proceedings were vexatious, even if they were not intentionally conducted so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
If, in fact, the proceedings have been conducted with that result, even if that was not subjectively intended, for example, by an unrepresented person with limited understanding who repeatedly files interlocutory proceedings seeking relief which has already been refused, it would thus be open to find that the proceedings were vexatious proceedings, on which orders under s 8 could be made. Such conduct would certainly bring the proceedings within the "repetitious suits" discussed in Teoh.
I consider, however, that the better view is that properly construed, s 6(d) is concerned with the result of the conduct of the proceedings, whatever may have been the subjective intention of the person concerned in the conduct which it is alleged brings the proceedings within the statutory definition of "vexatious proceedings".
That conclusion is driven both by the words used in s 6(d) and the differences in the language used in the four paragraphs of the definition. The differences between the words used in paragraphs (b) and (d), reflect the different work that these two parts of the definition have to do.
That paragraph (b) is concerned with subjective intention, is apparent from the use of the words "instituted to". That points to initiation of proceedings with the stated intention. That paragraph (d) is not concerned with intention, but rather with result, is apparent from the use of the words "conducted in a way so as to" achieve the stated result, namely "harass or annoy, cause delay or detriment, or achieve another wrongful purpose". That result can follow, whether or not any of those "purposes" were subjectively intended to be achieved, for example as the result of a lack of understanding, or misunderstanding.
Contrary to the general principle that prima facie all words in a statute have meaning and effect and courts are not at liberty to consider them as superfluous or insignificant (see The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11 at 414), if paragraph (d) is construed as also being concerned with subjective intent, rather than with result, the words "in a way so as" used in s 6(d) appear to be otiose. The paragraph could have provided "proceedings conducted to harass or annoy, cause delay or detriment, or achieve another wrongful purpose", words which would obviously have captured subjective intent, as s 6(b) does. That different words were used, must not be overlooked.
That the words ''in a way so as' where used in paragraph (d) have no meaning, is a conclusion contrary to the approach discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71], that "a court construing a statutory provision must strive to give meaning to every word of the provision".
In the case of s 6, that can readily be done. The conclusion that paragraph (d) is concerned with result and paragraph (b) with intent is neither inconsistent, nor in conflict. Rather, it produces harmony without inconsistency, giving all words used in the definition obvious work to do, consistently with the purpose of the statute. Thereby proceedings may be vexatious, as defined, whether commenced with the intent to "harass or annoy, cause delay or detriment, or achieve another wrongful purpose" , or even if not commenced with that intent, if they are conducted with that result, they will fall within the definition.
As the Attorney submitted, in construing the Act, both its beneficial purpose, so far as the community is concerned, as well as its draconian consequences for individuals against whom orders are made under the Act, must be borne in mind. So, too, must the consequences of the competing interpretations. As discussed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297 at 321: "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
In this case, a construction of s 6(d) as capturing the result of the conduct of the proceedings, whether or not that was what was subjectively intended, it seems to me, accords not only with the intention of the legislative scheme, but also with the grammatical sense of the words used.
Were that conclusion not correct, as I have explained, I consider nevertheless, given that the definition is an inclusive one, proceedings which are conducted, even unintentionally, so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose, fall within the definition of "vexatious proceedings" in s 6.
In the result, I consider that the better view is that Mr Mohareb's case, that s 6 of the Act must be construed in the way discussed by Basten JA in Viavattene, may not be accepted.
It will be necessary, however, to say something further about the construction of s 6(d), to which I will return in the context of the proceedings Mr Mohareb pursued in Queensland, which illustrates the difficulty with the broad operation of s6(d) for which the Attorney contended.

The Queensland proceedings

In this case, Mr Mohareb accepted that his original pleadings were inadequate, but contended, nevertheless, that it could not be concluded that his applications were vexatious, even though his further pleadings were struck out and he was refused leave to replead. That was because on his evidence, even though the Court accepted that he had a claim and he had taken legal advice, that had not resulted in pleadings acceptable to the Court. There is obvious force in his argument.
The particular finally pressed by the Attorney in MFI 4 provided: "1. in Mohareb v Lambert & Rehbein (Seq) Pty Ltd, filing repeated versions of a statement of claim that are liable to be struck out, as set out in Mohareb v Lambert & Rehbein (Seq) Pty Ltd [2010] QSC 126 at [33]-[36] (tab 2 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act;"
The Attorney's case was finally that repeatedly filing different versions of a statement of claim which were struck out, with the result that indemnity costs were ordered and leave to replead was refused, established that the proceedings were vexatious, given the breadth of the definition in s 6(d).
It was accepted, however, that this may also evidence incompetence on the part of those who drafted the pleadings and that it is relevant to consider that it is not only unrepresented parties who have difficulty in properly pleading their claim in accordance with the requirements of the Uniform Civil Procedure Rules. The Attorney thus accepted that little weight would be placed on the first statement of claim which was struck out in this case.
Even though Mr Mohareb then did take legal advice, it was submitted, however, that the further amended statements of claim he filed unintentionally caused delay and detriment, bringing the proceedings within s 6(d). That, it was argued, was relevant to the exercise of the discretion, not to whether the conduct fell within the broad terms of s 6(d).
I do not agree with that construction of s 6(d).
Even in an ordinary case, where there is no suggestion that the proceedings or any application made within them are vexatious, initiation, defence or pursuit of the proceedings or a particular, even on good grounds, may result in other parties considering that thereby they have been harassed or annoyed. Any departure from the requirements of the Rules, no matter how minor, understandable, or unintended, or even as the result of proper pursuit of settlement negotiations, may also result in either delay or other detriment, such as additional costs being incurred by the parties.
I consider that is not enough to bring the proceedings within s 6(d).
Not every difficulty which a litigant encounters, which results in a hearing date not being allocated as quickly as it otherwise might have been if the difficulty had not arisen, will result in delay or detriment to the other parties to the proceedings of the kind with which s 6(d) is concerned. Even the Attorney accepted, for example, that the Court must be particularly cautious before concluding that proceedings have become vexatious, just because time has passed while leave given to replead was pursued with legal assistance.
I consider that it is the use of the phrase "other wrongful purpose" in s 6(d) which sheds light on how this aspect of the definition must be construed, if it is to be given its intended operation in this legislative scheme, consistent with its intended purpose. It is when harassment, annoyance, delay and detriment results from the conduct of the proceedings which on the evidence is established to have been "wrongful", whether or not that was the intended result, that s 6(d) is engaged.
In the result the Attorney's approach to the construction of s 6(d) cannot be accepted.
The relevant circumstances in these proceedings were these.
In 2009, Mr Mohareb brought a claim against his former employer and other defendants. His amended statement of claim was struck out by White J in October 2009 as the result of the failure to adequately plead his case (see Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2009] QSC 324). The proceedings then had a considerable procedural history before they were struck out, with various costs orders having been made against Mr Mohareb which White J observed he had contested. It was Mr Mohareb's third further amended statement of claim which was struck out by his Honour in March 2010 in Mohareb v Lambert and Rehbein (SEQ) Pty Ltd [2010] QSC 126.
Thereafter, Mr Mohareb did not pursue these claims any further.
In his March 2010 judgment White J had observed at [33], however, that properly pleaded, Mr Mohareb might have a case "but, apparently he refuses to retain an appropriately skilled lawyer to act for him to settle these pleadings".
Mr Mohareb's unchallenged affidavit evidence was that he had initially sought legal advice, at a time when he was without a job, and had decided that he would have to be self-represented. His initial pleading difficulties were the result of his then lack of experience with litigation and ignorance of the rules of pleading, not an intention to harass or annoy, to cause delay or detriment, or for another wrongful purpose. After his first statement of claim was struck out, he engaged solicitors at considerable expense, to settle his amended pleadings, but still they were rejected by the Court.
When the proceedings were struck out, despite considering that to have been the result of problems not of his making, he did not appeal.
On all of that evidence, I consider that it is not open to conclude that these proceedings were vexatious.
In my view, inadequacy of pleadings filed, with the result that they are struck out, without more, is not a basis on which it can be concluded that proceedings such as these, which have an apparent basis, are vexatious. Nor can successful applications seeking leave to replead be found vexatious, even though the result may be that a hearing date is not allocated as quickly as it otherwise might be.
By way of contrast, repeated filing of further pleadings which do not attempt to address problems which have been identified in interlocutory judgements given, whether or not that is intentional, with the result of real delay and unnecessary costs being incurred will, however, bring the proceedings within s 6(d), because so to conduct the proceedings is undoubtedly wrongful.
The evidence does not establish that this was such a case.
To the contrary, despite the legal assistance Mr Mohareb pursued when he recognised his own shortcomings, the further pleadings filed were rejected as being inadequate. That does not establish that thereby the proceedings became vexatious.
As the Attorney accepted, Mr Mohareb's initial pleadings did not provide a basis for the conclusion that the proceedings were vexatious. The further pleadings his legal representatives drafted were also inadequate. It is conceivable that it could be found in such circumstances that thereby the party who it is alleged pursued vexatious proceedings conducted them in a way so as to cause delay or other detriment. Such a conclusion would be open, for example, if it were found that the legal representative had been acting in concert with the person sought to be declared vexatious, as s 8(1)(b) contemplates.
Where, however, it is apparent incompetence on the part of a legal representative, for which the client cannot reasonably be held responsible, which has resulted in further pleadings being struck out, it will be difficult to conclude that the proceedings have been conducted in a way that brings them within s 6(d).
I am satisfied in Mr Mohareb's case that the pleading difficulties which led to these proceedings being struck out, were not such that it could properly be concluded that these were vexatious proceedings as defined in s 6(d). The undoubted delay and detriments which resulted from the pleading deficiencies which led to the proceedings being struck out were not, however, "wrongful", in the way I have discussed.
Even if it could be concluded on the broad interpretation of s 6(d) for which the Attorney contended, that the apparent incompetence of the legal representatives White J criticised was enough to bring these proceedings within that part of the definition of 'vexatious proceedings', I do not consider that result would provide a proper basis on which the discretion to make orders under the Act against Mr Mohareb could justly be exercised, even if it were able to be concluded that he had frequently instituted or conducted such vexatious proceedings.

The Jankulovski proceedings

The Attorney accepted that the case advanced has to be considered in the context of what the parties to these proceedings respectively did.
These were also proceedings not unmeritorious on their face and concluded in a settlement which was on Mr Mohareb's uncontested evidence favourable to him. The Attorney did not contend that they were vexatious, but rather argued that certain interlocutory applications which Mr Mohareb had brought were.
These were proceedings in which Mr Mohareb was not represented and in respect of which he accepted that some of his interlocutory applications were clumsy, misconceived and in some cases, incompetent, as was found. He denied, however, that any of the steps which he took were intended to harass, annoy, cause delay or detriment or achieve any wrongful purpose.
On Mr Mohareb's evidence, it was in large measure not he who was responsible for delays in the pursuit of the litigation, but the defendants. The parties had reached agreement, on his evidence three times, before the final agreement by which the proceedings were settled was arrived at. On his case that explained a large part of the delay.
MFI 4 as finally pressed provided: "2. in Mohareb v Jankulovski, filing a notice of motion on 4 February 2013 for orders that: "all documents relating to and associated with, the defendants' application for costs assessment is referred to the Police for investigation and eventual charging for the defendants and their barrister Ms Marina Dulhunty for fraudulently claiming costs which they know they are not entitled to, with the express premeditated intent of subverting the course of justice by using the costs order to intimidate the plaintiff into discontinuing the proceedings", (see Mohareb v Jankulovski [2013] NSWSC 850 at [123]-[124], at tab 6 of Exhibit SMJ-1). This was vexatious within the meaning of sections 6(a), 6(c) and 6(d) of the VP Act; 4. in Mohareb v Jankulovski, filing a summons seeking leave to appeal from a costs assessment, which did not disclose a reasonable cause of action, rather than seeking a review of the costs assessment under section 373 of the Legal Profession Act 2004 (NSW) (see Mohareb v Jankulovski [2013] NSWSC 1300 at [19]-[20], at tab 7 of Exhibit SMJ-1). This was vexatious within the meaning of sections 6(a), 6(c) and 6(d) of the VP Act; 4a. in Mohareb v Jankulovski, in the summons referred to in paragraph 4 above, including as appeal ground 1 the assertion that: "In reaching his decision, I believe that the costs assessor has erred in relation to the facts of this matter." This was vexatious within the meaning of section 6(d) of the Act. 5. in Mohareb v Jankulovski, in the summons referred to in paragraph 4 above, including as appeal ground 2 the assertion that: "I have irrefutable evidence that the Defendants in collusion with their barrister Ms Marina Dulhunty are fraudulently claiming costs for work they have undertaken themselves while declaring under false pretences that the work was undertaken by Ms Dulhunty", then providing no particulars or evidence of the fraud and, when asked, saying that he did not press the ground of appeal (see Mohareb v Jankulovski [2013] NSWSC 1300 at [9], [14]-[15], at tab 7 of Exhibit SMJ-1). This was vexatious within the meaning of sections 6(c) and 6(d) of the VP Act; 5a. in Mohareb v Jankulovski, seeking leave to appeal, instead of applying for a review of the costs assessment under section 373 of the Legal Profession Act 2004, which was a more difficult and expensive route to challenge a costs assessment, was vexatious within the meaning of sections 6(a) or 6(d) of the VP Act (see Mohareb v Jankulovski [2013] NSWSC 1300 at [20], Ex SMJ-1 at tab 7). 7. in Mohareb v Jankulovski, failing to file a second further amended statement of claim, as required by Harrison AsJ on 27 June 2013, until 3 April 2014 following orders by Rothman J by 24 March 2014 (see Mohareb v Jankulovski [2013] NSWSC 850 at [133] order (4), at tab 6 of Exhibit SMJ-1; Mohareb v Jankulovski [2014] NSWSC 451 at [4]-[6], at tab 9 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act; 8. in Mohareb v Jankulovski, refusing to return two "dongles" to the defendants with what Harrison J found to be "a transparently disingenuous ploy to frustrate the defendants' conceded right to have the items concerned returned to them forthwith" (see Mohareb v Jankulovski [2014] NSWSC 745 at [11], at tab 11 of Exhibit SMJ-1). This was vexatious within the meaning of section 6(d) of the VP Act;"

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (8)

Cases Cited (54)