Mohareb v Kelso

1. [1]

   HIS HONOUR: By an amended notice of motion filed on 3 September 2020, the applicant, Nader Mohareb, seeks that certain orders made by the Common Law Registrar on 13 August 2020 be set aside and that other orders be made in their stead. The applicant also seeks access to a court file, leave to issue two subpoenas, and an order for the arrest and detention in custody of the respondent pursuant to Pt 55, Div 3, r 10 of the Supreme Court Rules 1970 (NSW). I will consider this latter aspect of the notice of motion after separately considering the challenge to the Registrar’s orders.

Background

1. [2]

   In 2014, the applicant commenced proceedings against the respondent in the District Court by way of a statement of claim. On 4 December 2017, the respondent assaulted the applicant. The respondent was arrested, charged and ultimately pleaded guilty to a count of causing grievous bodily harm with the intention of causing grievous bodily harm, pursuant to s 33(1) of the Crimes Act 1900 (NSW). He was sentenced on 17 April 2020 by Norrish QC DCJ to a term of imprisonment for a period of 1 year and 10 months from that date, to be served in the community by way of an Intensive Correction Order: R v Kelso [2020] NSWDC 157.

2. [3]

   On 1 February 2018, the applicant filed a notice of motion in the Court of Appeal (“the 1 February 2018 notice of motion”) naming seven respondents, the first being the respondent to this notice of motion and the third being a brother of the respondent, John Kelso. The notice of motion sought the following orders:

3. [4]

   In accordance with Pt 55, Div 3, r 7 of the Supreme Court Rules, the applicant subscribed to a statement of charge which contended that the contempt alleged against the first respondent was the criminal assault upon him and that it had been motivated by the District Court proceedings.

4. [5]

   On 5 June 2020, Simpson AJA determined that, pursuant to s 53(4) of the Supreme Court Act 1970 (NSW), the applicant’s action should have been commenced in the Common Law Division of the Supreme Court: Mohareb v Kelso [2020] NSWCA 105. Her Honour made the following orders:

The Registrar’s directions hearing

1. [6]

   The Registrar of the Common Law Division held a directions hearing for the matter on 13 August 2020. The applicant appeared in person. Two respondents appeared, being John Kelso, who was represented by his solicitor Mr Prowse, and Roderick Smith, who appeared in person. The Registrar made the following orders:

2. [7]

   It is apparent from the transcript of the directions hearing that the Registrar’s intention was for her third order to be in favour of Mr Prowse’s client, who was referred to as the second respondent throughout the hearing and had been named as such in the judgment of Simpson AJA, although he was the third respondent to the notice of motion itself, filed on 1 February 2018.

3. [8]

   The relief claimed by the applicant in the summons that is attached to the Registrar’s record of proceedings, which names the respondent as the only defendant, is as follows:

4. [9]

   In compliance with the Registrar’s second order, the applicant filed an “Amended Summons” the same day, in the same form as that which was attached to the Registrar’s orders.

The applicant’s challenge to the Registrar’s orders

1. [10]

   The applicant appeared before me without legal representation, relying on an affidavit in support of his amended notice of motion, some material that was attached to an earlier, abandoned set of written submissions, and certain other material filed in earlier proceedings. He made oral and written submissions. As before the Registrar, only John Kelso and Roderick Smith appeared. John Kelso was represented by counsel, and Mr Smith appeared in person.

2. [11]

   The orders sought by the applicant in relation to the Registrar’s orders are as follows:

3. [12]

   The applicant challenges the Registrar’s first order on the basis that, subsequent to the orders of Simpson AJA and prior to the hearing before the Registrar, the notice of motion had ceased to exist and, therefore, it could not be dismissed. The evidentiary basis of this proposition is the terms of the notice of listing of the Registrar’s initial directions hearing for this matter on 23 June 2020 (“the notice of listing”). It stated:

4. [13]

   In the proceedings before the Registrar and before me, the applicant submitted that the notice of listing is to be understood as meaning that the notice of motion had been “filed into the Common Law Division as a summons”. The applicant has not advanced any further evidence or argument in support of his challenge to the Registrar’s first order.

5. [14]

   The basis of the applicant’s challenge to the third order is that John Kelso was disentitled to costs because his appearance at the hearing before the Registrar was unnecessary. This was because the applicant had informed the other respondents, including John Kelso, prior to the Registrar’s hearing that he only intended to pursue the orders sought in his notice of motion that affected the respondent.

6. [15]

   The applicant submitted that he first made his intention clear in the hearing before Simpson AJA. The applicant also relied upon a statement by him in an email dated 28 June 2020 (“the 28 June email”) which he sent to John Kelso and others, in which he stated, referring to the third order in his notice of motion that had been remitted to the Common Law Division:

7. [16]

   The reason for the applicant’s reference to six, rather than seven, respondents in the first quoted paragraph is not apparent. I assume it was unintended. Attached to the email was a document he referred to as a “Draft Proposed Summons”, which was in the same terms as the relief sought in the draft summons attached to the Registrar’s orders.

8. [17]

   At the hearing before the Registrar, the applicant confirmed that he had indicated by the 28 June email that he was proposing to proceed only against the first respondent, and that he had no objection to the proceedings against the remaining six respondents being dismissed. Mr Prowse sought clarification that the applicant was “withdrawing unconditionally the notice of motion that was filed in 2018”, to which the applicant responded: “Okay, well, I’m not withdrawing anything, it’s the Court that ordered that the motion be filed as a summons”. Mr Prowse submitted that he was content for the Registrar to dismiss the notice of motion with costs in the hearing before the Registrar.

Consideration

1. [18]

   In my opinion, rr 36.15 and 36.17 of the UCPR are irrelevant to the applicant’s challenge. The former permits the setting aside of a judgment or order if it was attended by irregularity, illegality or if it was not made in good faith, which I do not understand the applicant to be alleging. The latter is a slip rule, intended for the correction of accidental slips or omissions, which also are not alleged by the applicant. Rule 36.16 is relevant insofar as the orders affect the respondent, as he was not represented at the directions hearing: r 36.16(2)(b). Rule 49.19 permits a review of directions and orders made by a registrar, and is relevant to the orders insofar as they affected John Kelso and Roderick Smith, since they were represented or present at the hearing. Rules 36.16 and 49.19 are relevantly as follows:

2. [19]

   In relation to the applicant’s challenge to the first order, in which he relied on the wording of the notice of listing to argue that the notice of motion had been transformed into a summons by the Registry, the Registrar explained to the applicant:

3. [20]

   I agree with the Registrar’s observation as to the insignificance of the reference to an amended summons in the notice of listing. The notice of motion had been remitted to the Common Law Division and the applicant had not withdrawn it, so that the Registrar was obliged to make orders in respect of it. Accordingly, the applicant’s challenge to the Registrar’s first order is without merit.

4. [21]

   In relation to the applicant’s challenge to the Registrar’s third order, a reading of the transcript of the hearing in the Court of Appeal and the judgment of Simpson AJA provides no support for the applicant’s submission that his intention to not proceed against the other respondents, in particular John Kelso, was made clear at that stage. In any event, John Kelso was not present or represented at the Court of Appeal hearing. Indeed, her Honour concluded her judgment by stating, in relation to the claims against the other six respondents, at [22]:

5. [22]

   In the 28 June email, the applicant referred to his interpretation of the notice of listing. In my opinion, this alone was a reasonable basis for John Kelso to arrange representation at the directions hearing, to ensure that the notice of motion was in fact dismissed by the Registrar, so that he was no longer subject to it. In all the circumstances, John Kelso was entitled to seek and receive an order for his costs occasioned by his representation at the directions hearing.

6. [23]

   Accordingly, orders (1), (2) and (3) of the applicant’s amended notice of motion are without merit.

The applicant’s prayers for orders (4) to (7) of the amended notice of motion

1. [24]

   The applicant sought further orders as follows:

2. [25]

   The further orders sought in the applicant’s amended notice of motion are not relevant to the orders sought in the notice of motion that was remitted from the Court of Appeal to the Common Law Division, but rather, relate to the orders sought in the amended summons.

3. [26]

   The filing of the applicant’s amended summons requires consideration of vexatious proceedings orders made by Fagan J in Palmer v Mohareb [2019] NSWSC 975 against the applicant, pursuant to the Vexatious Proceedings Act 2008 (NSW) (“the Act”). One such order made by his Honour (“Fagan J’s order”) was in the following terms:

4. [27]

   Fagan J’s order was made on 7 August 2019. In the Registrar’s directions hearing of 13 August 2020, the effect of the order was drawn to the Registrar’s attention by the solicitor for John Kelso, who submitted that “any new document from Mr Mohareb would be in breach of the vexatious litigant order”. The Registrar responded:

5. [28]

   Fagan J’s order was not mentioned again in the directions hearing. It appears that the Registrar was of the opinion that the issue of whether the applicant’s amended summons would constitute a breach of the order would be dealt with after the amended summons was filed and served on the respondent. However, once Fagan J’s order was made, it became necessary for any filing to be considered in light of it and the relevant parts of the Act.

6. [29]

   The orders sought against the respondent in the applicant’s amended summons are so different from those that were sought in the 1 February 2018 notice of motion that it could not reasonably be considered to be a continuation of the same proceedings. The only similarity between the orders sought in each document is part of the first order, that is a prayer that the respondent be dealt with for “Criminal Contempt of Court”; otherwise, the relief sought in the amended summons is additional to, and substantively different from, those earlier-sought orders.

7. [30]

   Section 13 of the Act relevantly provides:

8. [31]

   Section 16 of the Act sets out the steps that must be taken by a court and a person who is the subject of a vexatious proceedings order, before leave can be granted for proceedings to be instituted.

9. [32]

   The term “proceedings” is defined in s 4 of the Act as follows:

10. [33]

    The term “institute proceedings” is defined as follows in s 5 of the Act:

11. [34]

    In my view, the filing of the “amended summons” by the applicant on 13 August 2020 was contrary to s 13(1)(a) of the Act, even though the filing was in accordance with the Registrar’s orders of the same date, because it constituted an instituting of proceedings by a person subject to a vexatious proceedings order, without “the leave of an appropriate authorised court under section 16”: s 13(1)(a) of the Act.

12. [35]

    The amended summons that was filed by the applicant on 13 August 2020, although pursuant to the Registrar’s second order, is stayed pursuant to s 13(2) of the Act. Further, pursuant to s 13(3) of the Act, it was taken to be dismissed 28 days after it was filed, being 10 September 2020. If the applicant wishes to pursue an action against the respondent, he is obliged to comply with the requirements of s 16 of the Act.

13. [36]

    In relation to the question of costs, counsel for John Kelso submitted before me that if the applicant succeeded in setting aside the Registrar’s first order, the effect would be to reinstate the notice of motion, so that her client would once again be a party to the proceedings. I accept that it was appropriate for John Kelso to be represented on the hearing of the notice of motion before me, and I will make an order that the applicant pay his costs.

Orders

1. [37]

   I make the following orders:

   1. (1)

      The amended notice of motion filed on 3 September 2020 is dismissed.

   2. (2)

      The applicant to pay the costs of the ex-third respondent, John Kelso, on this notice of motion.

   3. (3)

      It is noted that the amended summons that was filed by the applicant on 13 August 2020 was taken to be dismissed on 10 September 2020, by the operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW).