Mohareb v Office of the Director of Public Prosecutions (NSW)

1. [1]

   HIS HONOUR: The applicant (Mr Mohareb) moves on a notice of motion filed on 7 March 2024 in the context of proceedings which are on foot in this Court, being Nader Mohareb v Office of the Director of Public Prosecutions NSW (2023/298165). Those proceedings involve a summons seeking leave to appeal which was filed on 14 November 2023 (the summons). The summons is listed to be heard on 22 April 2024. I will return to describe those proceedings in more detail shortly.

2. [2]

   In the notice of motion, Mr Mohareb seeks (not for the first time) an order pursuant to Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) (Supreme Court Rules), namely that a warrant be issued for the arrest of Mr Alexander Edward Kelso. In support of the motion, Mr Mohareb relied upon four affidavits by him dated 28 June 2023, 9 August 2023, 22 February 2024 and 7 March 2024. He also relied upon extracts from the summary of argument filed by him in support of the summons and he tendered (a) a document dated 15 August 2017 which records the then email address of Mr Kelso (Exhibit 1) and (b) two annexures to an affidavit affirmed by him on 29 May 2020 (Exhibit 2).

3. [3]

   Mr Mohareb represented himself at the hearing of the motion. The DPP was represented by Mr Lee.

4. [4]

   During the course of that hearing, it became apparent that Mr Mohareb had been unsuccessful in his attempts to achieve personal service of the summons and related documents on Mr Kelso. In those circumstances, Mr Mohareb sought to amend his notice of motion so as to add an order for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He relied on the evidence of his attempts to serve the summons and related documents on Mr Kelso. The DPP did not oppose the amendment. The Court granted Mr Mohareb leave to amend the motion as sought by him so as to add an application for an order under r 10.14(3) to serve the summons and related documents on Mr Kelso.

5. [5]

   In circumstances where Mr Mohareb had made no attempt to serve the notice of motion and supporting documents on Mr Kelso, the Court indicated that it could not deal with that part of the notice of motion relating to the application for an arrest warrant and that this part should be dealt with by the Court when it hears Mr Kelso’s summons on 22 April 2024.

6. [6]

   It is desirable to outline in broad terms the complicated and protracted history of the litigation involving Mr Mohareb and Mr Kelso. In doing so, I rely primarily on a chronology which is attached to Mr Mohareb’s affidavit dated 7 March 2024.

A brief and selected summary of the proceedings

1. [7]

   In July 2015, Mr Mohareb commenced civil proceedings in the District Court against Mr Kelso. The proceedings related to events which had occurred on Scotland Island, where both Mr Mohareb and Mr Kelso lived.

2. [8]

   On 27 November 2017, Mr Mohareb unsuccessfully sought to adjourn the District Court proceedings. He promptly filed an application for leave to appeal and a notice of motion in this Court. This caused the District Court proceedings to be adjourned for mention on 5 December 2017.

3. [9]

   On 4 December 2017, Mr Mohareb was seriously assaulted by Mr Kelso with a baseball bat. His jaw was fractured and his face was severely bruised. Mr Kelso pleaded guilty to a charge of assault with intent to cause grievous bodily harm. On 17 April 2020, Mr Kelso was sentenced by Norrish QC DCJ to an Intensive Correction Order for one year and 10 months’ duration, with a condition that he perform 400 hours of community service. A Crown appeal against that sentence was subsequently abandoned.

4. [10]

   On 1 February 2018, Mr Mohareb filed a notice of motion in the Court of Appeal charging Mr Kelso with criminal contempt on the basis that the assault by Mr Kelso was intended to discourage him from prosecuting the civil proceedings against Mr Kelso in the District Court. The motion was heard by Simpson AJA on 1 June 2020. On 5 June 2020, her Honour published reasons for judgment in Mohareb v Kelso [2020] NSWCA 105. Based on Mr Mohareb’s affidavit of service dated 29 May 2020, her Honour accepted that the seven respondents, including Mr Kelso, had been given appropriate notice of the motion. But her Honour ruled that the motion was appropriately heard in the Common Law Division and did not fall within the ambit of s 48 of the Supreme Court Act 1970 (NSW) (which deals with the assignment of proceedings for contempt to the Court of Appeal). Concluding that Mr Mohareb’s proceedings did not fall within any exception in s 48, her Honour ordered that the motion dated 1 February 2018 be remitted to the Common Law Division.

5. [11]

   During the course of the hearing before Simpson AJA, Mr Mohareb raised the issue of an order under Pt 55 r 10 of the Supreme Court Rules for an arrest warrant to be issued against Mr Kelso. Simpson AJA said that it was too early for the Court to make such an order.

6. [12]

   On or about 12 June 2020, the 1 February 2018 motion was filed as a summons in the Common Law Division. Thereafter, there have been multiple applications and hearings, both before the Common Law Registrar and various judges of the Division. It is unnecessary to detail those proceedings (or the various appeals arising therefrom). It is sufficient to note that the proceedings in the Common Law Division resulted in separate judgments by Ierace J on 16 October 2020 (see Mohareb v Kelso [2020] NSWSC 1402); Beech-Jones CJ at CL on 13 December 2022 (Mohareb v Kelso (delivered ex tempore, unrep.); Bellew J on 7 February 2023 (see Mohareb v Kelso [2023] NSWSC 20); and Campbell J on 14 July 2023 (Mohareb v Kelso [2023] NSWSC 826).

7. [13]

   It is necessary, however, to say something more regarding proceedings in the Common Law Division before Sweeney J, as these are the proceedings which give rise to the summons now in this Court. On 24 August 2023, Sweeney J heard a notice of motion filed on 5 May 2023 by the DPP. The motion sought to set aside the balance of a subpoena dated 8 March 2023 issued to the DPP. Sweeney J also granted leave to the DPP to file in Court a notice of motion seeking to set aside a notice to produce which had been issued by Mr Mohareb. During the course of the hearing, Mr Mohareb said that he would like to seek an order pursuant to Pt 55 r 10 of the Supreme Court Rules, seeking an arrest warrant against Mr Kelso. Her Honour stated that she would not deal with that matter on that day because she was only dealing with the DPP’s notices of motion.

8. [14]

   Sweeney J delivered ex tempore reasons for judgment on 24 August 2023 explaining why she upheld the DPP’s applications to have part of the subpoena and the notice to produce set aside as lacking any legitimate forensic purpose. The reasons for judgment are silent on the issue of an arrest warrant.

9. [15]

   It is convenient now to describe in a little more detail the pending proceedings in this Court.

Mr Mohareb’s summons in this Court

1. [16]

   As noted above, on 14 November 2023, Mr Mohareb filed the summons. The orders sought are as follows:

2. [17]

   The draft notice of appeal not only challenges Sweeney J’s decisions relating to the subpoena and notice to produce but also challenges what is described as her Honour’s “refusal” to make an order under Pt 55 r 10 of the Supreme Court Rules. Paragraph 2 of the draft notice of appeal states:

3. [18]

   As noted above, on 7 March 2024, Mr Mohareb filed a notice of motion in this Court seeking similar relief to that outlined in para 4 of the summons. At the hearing before me, he said that he took this course because he was concerned that there would be too little time for his application to be heard in the context of his leave to appeal application.

Mr Mohareb’s recent attempts to serve documents on Mr Kelso

1. [19]

   It is unnecessary to summarise all the evidence regarding Mr Mohareb’s attempts over many years to serve documents on Mr Kelso. I shall primarily focus on the more recent relevant material.

2. [20]

   I will now summarise the evidence of Mr Mohareb’s attempts to serve various documents on Mr Kelso relating to the summons, which is contained in his affidavits dated 22 February 2024 and 7 March 2024:

3. [21]

   At the hearing before me on 25 March 2024, after Mr Lee submitted that the Court should attach weight to the fact that Mr Mohareb had attempted to serve Mr Kelso only once at his workplace. In reply, Mr Mohareb said from the Bar table that he had also tried to call Clontarf Marina on 7 March 2024 and that when he spoke again to Ian, he acted differently from before. He said that he subsequently sent an email to Clontarf Marina, enclosing a copy of the notice of motion filed on 7 March 2024 and his affidavits dated 22 February 2024 and 7 March 2024. He said that he copied his email to the DPP. He said that he also sent a copy of the email to Mr Kelso personally and also to Champagne Sailing Sydney. Mr Mohareb did not have a copy of those emails in Court. Accordingly, they cannot be taken into account.

Consideration and determination

1. [22]

   The subject of substituted service is dealt with in UCPR r 10.14, which states:

2. [23]

   Paragraph (3) makes clear that, even where an order has not been made under the rule, if steps have been taken for the purpose of bringing a document to the notice of the person concerned, the Court has the power to direct that the document be taken to have been served on that person on a date specified in the order. In making such an order, I am conscious of UCPR r 10.20(2)(a) and the requirement of personal service of an originating process.

3. [24]

   It is also to be noted that para (3A) requires an order under the rule to be supported by an affidavit by the applicant, which includes the matters specified therein. I am satisfied that this has occurred here.

4. [25]

   Having regard to the summary above of Mr Mohareb’s evidence and the steps taken by him to serve the summons and related documents on Mr Kelso, I am satisfied that appropriate steps have been taken to give notice to Mr Kelso. This includes emailing the documents to an email address for Mr Kelso in circumstances where:

5. [26]

   I do not accept the DPP’s submission that Mr Mohareb has not established for the purposes of UCPR r 10.14 that the documents cannot “practicably” be served on Mr Kelso because only one attempt has been made to serve the documents on Mr Kelso’s work address. I am satisfied that Mr Mohareb has taken all reasonable available steps to serve the documents on Mr Kelso by various means at his work address, his last known residential address and his email address.

6. [27]

   For what it is worth, I also note that Simpson AJA and Campbell J were both satisfied that similar steps taken by Mr Mohareb to serve earlier documents on Mr Kelso indicated that he had been given appropriate notice.

Conclusion

1. [28]

   For all these reasons, I am satisfied that this is an appropriate case to make an order under r 10.14(3) of the UCPR.

2. [29]

   I will also make further orders requiring Mr Mohareb promptly to serve a copy of these reasons for judgment and related materials on Mr Kelso.

3. [30]

   Finally, as noted above, in circumstances where Mr Mohareb adduced no evidence of any attempt by him to serve on Mr Kelso a copy of the notice of motion filed on 7 March 2024 and related affidavits, it is inappropriate for me to rule on his application concerning the issue of an arrest warrant under Pt 55 r 10 of the Supreme Court Rules. Assuming that Mr Mohareb complies with the orders I will make regarding service of those materials, this part of the motion may be heard by the Court on 22 April 2024. Presumably one of the matters which the Court will address on that occasion is the appropriateness of Mr Mohareb seeking in this Court an order for the arrest of Mr Kelso, as opposed to having the matter heard and determined in the Common Law Division, as ordered by Simpson AJA. This will include consideration of whether there is an arguable appealable error in respect of Sweeney J’s refusal to determine his application in the circumstances which existed at that time.

4. [31]

   The costs of today’s hearing are reserved.

Orders

1. [32]

   The orders are as follows:

   1. (1)

      The applicant have leave to amend the notice of motion filed on 7 March 2024 so as to seek an order under r 10.14(3) of the Uniform Civil Procedural Rules 2005 (NSW).

   2. (2)

      Order under r 10.14(3) that the following documents be taken to have been served on Mr Alexander Edward Kelso on 22 February 2024.

   3. (3)

      Order that by no later than 4.00pm on Thursday 28 March 2024, the applicant file an amended notice of motion in accordance with paragraph 4 of these reasons for judgment.

   4. (4)

      Order that by no later than 5.00pm on Tuesday 2 April 2024:

   5. (5)

      The costs of the hearing dated 25 March 2024 are reserved.