Mohareb v State of New South Wales (No 2)

THE COURT: In late 2021, Mr Nader Mohareb sought leave to appeal from aspects of two interlocutory decisions of the District Court. The first followed a two day procedural hearing, concerning joinder of new parties (the third respondent Dr Michael Bowler and the fourth respondent Nine Entertainment Co Holdings Ltd), amendments to and the striking out of parts of Mr Mohareb’s existing claim against the State (the first respondent) and the Council (the second respondent) and consequential costs orders: Mohareb v State of New South Wales & Ors [2021] NSWDC 177. The second followed Mr Mohareb’s application to re-open the first decision pursuant to Pt 36 of the Uniform Civil Procedure Rules 2005 (NSW), and was determined on the papers: Mohareb v State of New South Wales & Ors (No 2) [2021] NSWDC 215. The Court as presently constituted dismissed his application for leave on 18 November 2021: Mohareb v State of New South Wales [2021] NSWCA 278.

As described in that judgment, Mr Mohareb supplied more than 1500 pages of material in support of his application, his proposed notice of appeal contained 86 grounds, and the proposed District Court pleading was 55 pages long with more than 250 pages of annexures. There were extensive written submissions in support of his application for leave, and when the matter was listed on 12 November 2021, we heard oral submissions, mostly from Mr Mohareb in reply, before reserving our decision.

Promptly after judgment was delivered, Mr Mohareb filed on 29 November 2021 a notice of motion seeking the following relief:

The affidavit in support attached the transcript of the hearing on 12 November 2021, an extract from the transcript of the District Court and some correspondence with the Registrar concerning filing fees. The Registrar made directions for the exchange of written submissions and directed that the motion be heard and determined on the papers. The submissions of Mr Mohareb were filed on 6 January 2022 and 16 February 2022 (although the latter is dated 17 February 2022). The respondents also supplied submissions. Paragraph 8 of Mr Mohareb’s submissions in chief submitted that his motion should be heard and determined in open court.

With respect, Mr Mohareb misapprehends the power to set aside or vary a final judgment such as that delivered by this Court on 18 November 2021. That is not the first time this has occurred.

It will have been noted that Mr Mohareb applied under the same provisions to the District Court, and his application was refused. After a limited grant of leave in different proceedings (see Mohareb v Kelso [2021] NSWCA 103), he filed no fewer than three applications seeking to reopen parts of the decision refusing leave. The first was dismissed on 20 August 2021: Mohareb v Kelso (No 2) [2021] NSWCA 182 (dismissing an amended notice of motion filed 1 June 2021). The second was filed on 31 August 2021 and dismissed on 14 September 2021: Mohareb v Kelso (No 3) [2021] NSWCA 213. The third was filed on that day, 14 September 2021, and it too was dismissed: Mohareb v Kelso (No 4) [2021] NSWCA 336.

In the judgment delivered 20 August 2021, it was noted at [3] that:

Earlier in 2021, a further application to reopen a judgment was dismissed by Basten JA in Mohareb v Palmer (No 3) [2021] NSWCA 39. His Honour noted at [19]:

There is no need to summarise most of the submissions supplied by Mr Mohareb in any detail. He is dissatisfied with the reasoning and result refusing leave to appeal from the interlocutory decision of the District Court. He says that some of his submissions have not been addressed (including that “the outcome of my leave application was based on the determination of only 30% of my proposed appeal grounds with the remaining 70% having been left undetermined”). He submits that there is a duty on the other parties to assist him, and casts aspersions against the conduct of some of the legal practitioners retained by the respondents.

If there were anything in these submissions, they could be raised on appeal. They do not fall within the limited power of this Court to reopen its earlier judgments.

There is however one aspect which we should elaborate. Mr Mohareb submits that we disregarded material placed before the Court and that he was denied procedural fairness. We did not address all of the material Mr Mohareb placed before the Court in support of his application for leave, because there was no need to do so. We did not address all of his 86 proposed grounds of appeal for the same reason. We did address his complaint that the primary judge was biased, and had himself disregarded the voluminous material Mr Mohareb had placed before him, and had not erred by imposing some time constraints on Mr Mohareb’s oral submissions at [32]-[34]:

Mr Mohareb submits that a review of the transcript “shows that I did not – as is asserted at [34] of this Court’s judgment – ‘twice’ decline to answer the questions of whether the two days hearing was ‘unduly rushed’”. The transcript to which we referred is italicised below (it is reproduced in full context to address Mr Mohareb’s submissions):

Mr Mohareb’s submission that the transcript does not record his failure to answer the question how long he should have had is wrong. Mr Mohareb’s further submission that “[w]hen I tried … to spell out what my contention really was, Meagher JA cut me off” is also wrong. We do not accept that there was any denial of procedural fairness to Mr Mohareb.

There is no basis for the oral hearing sought by Mr Mohareb, an undischarged bankrupt, subject to an order under the Vexatious Proceedings Act 2008 (NSW) and who has repeatedly brought applications under these provisions without foundation. The notice of motion filed on 29 November 2021 must be dismissed with costs.

Mr Mohareb has a demonstrated capacity to make groundless applications pursuant to UCPR Pt 36 after judgments and orders have been entered against him. It would be open to the Court to make an order resembling that made in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324 to the effect that if Mr Mohareb files a motion under UCPR Pt 36, the Registrar should promptly vacate the return date, notify the parties, and refer the papers to a Judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Mohareb should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process. However, we do not propose in this judgment to make such an order.