Mohareb v Kelso

SIMPSON AJA: Before the court is a notice of motion filed by the applicant (Nader Mohareb) on 1 February 2018 in which he names seven respondents. The first respondent is Alexander Edward Kelso.

The notice of motion first came before me on 25 May 2020. I was not satisfied that the respondents had been given notice of the listing and stood the proceeding over to 1 June 2020. I directed the applicant to provide evidence that the respondents had been given notice of the adjourned hearing date; I also directed that he provide submissions why the notice of motion should not be remitted to the Common Law Division of the Supreme Court for hearing.

On 1 June 2020 the applicant provided evidence that satisfied me that each of the respondents had been given the appropriate notice. One only, the sixth respondent, appeared.

The orders sought by the applicant in the notice of motion fall into two categories:

Section 326 of the Crimes Act may be put to one side. That section creates an indictable criminal offence, punishable by imprisonment for 10 years, of taking reprisals against any person on account of anything lawfully done by a person as a witness, juror or public justice official in or in connection with any judicial proceedings. It plainly does not provide any basis for the exercise of the powers of this Court or the Supreme Court on notice of motion. Any proceedings under s 326 must be commenced and pursued in accordance with established criminal procedures.

Part 55 of the Supreme Court Rules 1970 (NSW) deals with proceedings for contempt. Division 3 prescribes the procedures that govern applications in which it is alleged that a person is guilty of contempt, other than contempt in the face of the court (which is dealt with in Div 2). Inter alia, r 7 of Div 3 requires that a statement of charge be subscribed to or filed with the notice of motion or summons in which the orders are sought. The statement of charge is required to specify the contempt alleged.

A statement of charge was subscribed to the applicant’s notice of motion. From that statement of charge it may be discerned that the contempt alleged against the first respondent is a criminal assault upon the applicant motivated by proceedings brought in the District Court by the applicant against the first respondent.

Section 48 of the Supreme Court Act 1970 (NSW) deals with assignment to this Court of certain proceedings, including proceedings for contempt. By subs (2)(i) there are assigned to this Court proceedings:

By subs (2)(j) there are assigned to this Court proceedings:

The applicant contended, relying on the authority of Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682, that the contempt he alleges was committed in the face of the court, and that the proceedings are, therefore, by s 48(2)(i)(i), assigned to this Court. I reject that contention. Collins was a case in which a protester, standing in the precincts of several courts where criminal trials were conducted, in some cases where trials were in progress, handed out pamphlets to jurors and potential jurors, urging awareness of what Collins asserted to be police malpractice. The court took an expansive view of what constituted contempt in the face of the court: see 699 B-C, 707 D-E, 708E- F, 709A-E. A later bench of the court in Fraser v The Queen [1984] 3 NSWLR 212 drew back from such an expansive approach: see 228D-E, 231C-D, 232D-E.

Even on the expansive approach taken by the court in Collins, the facts in the present case are a very long distance from the facts in Collins and fail to support any finding that the contempt the applicant alleges is contempt in the face of the court. The acts constituting the alleged contempt are said to have been committed at the applicant’s home, well away from this Court.

The applicant also contended that the actions constituted contempt as disobedience of a judgment or order of this Court, or breach of an undertaking given to this Court and therefore within s 48(2)(i)(ii) and (iii). I also reject that contention. There is nothing contained in the notice of motion or statement of charge that would remotely permit either inference to be drawn. There is no judgment or order said to have been disobeyed, and no undertaking said to have been breached.

Finally, the applicant relied on s 48(2)(j). He argued that assignment of his notice of motion to this Court is necessary or convenient for the discharge of the functions of this Court.

The basis for that contention lies in a summons seeking leave to appeal filed by the applicant on 20 March 2020. The applicant asserts that the two proceedings should be listed for a joint hearing. The judgment against which leave to appeal is sought is said to be a judgment of a judge of the District Court delivered on 20 December 2019. That judgment has not been provided in this proceeding. However, the applicant informed me that the respondents to the summons and the issues raised are co-extensive with those involved in the present notice of motion. It can be seen from the summons that the respondents to the summons are, as the applicant says, the respondents to the notice of motion. As I understand it, the applicant contends that each proceeding involves an allegation that the respondents were directly or vicariously liable in negligence for the criminal assault alleged to have been committed by the first respondent. (In fact, as I also understand, the first respondent has entered a plea of guilty to a criminal charge of causing grievous bodily harm with intent to do so, and has been convicted and sentenced: R v Kelso [2020] NSWDC 157).

It is not apparent to me, on perusal of the summons, that the issues in the two proceedings are co-extensive. The grounds pleaded in the summons include:

Other grounds pleaded in the summons assert bias, denial of procedural fairness and refusal to “self-disqualify”. These can have nothing to do with the issues in the notice of motion and are in no way co-extensive with the issues that will arise in the pursuit of the contempt proceedings against the first respondent.

Far from being administratively necessary or convenient to the discharge of the functions of this Court, the mingling of issues raised in a criminal contempt proceeding and those raised in a summons seeking leave to appeal against a decision of the District Court would create confusion as well as unnecessary expense and delay.

The applicant has not brought his notice of motion within any of the paragraphs of s 48(2)(i) of the Supreme Court Act, or within s 48(2)(j). Accordingly, s 48(2) does not assign the notice of motion to this Court. By s 53(3) there are assigned to the Equity and the Common Law Divisions of the Supreme Court, respectively, proceedings for the punishment of contempt of the court, but only where the (alleged) contempt consists of contempt in the face of, or in the hearing of the Court in that Division, disobedience of a judgment or order of the Court in that Division, or breach of an undertaking given to the Court in that Division. By s 53(4) of the Supreme Court Act there are assigned to the Common Law Division:

Pursuant to s 51(2)(b) of the Supreme Court Act, where proceedings are commenced in the Court of Appeal but are, under s 51 or under the Rules, assigned to a Division, the Court of Appeal may, on application by a party or of its own motion, order that the proceedings be remitted to a Division.

When the notice of motion was first listed before me on 25 May 2020, the applicant was directed to provide submissions as to why this Court should not (of its own motion) exercise the power under s 51(2)(b) to remit the notice of motion to the Common Law Division of the Supreme Court. He provided such submissions, which have been referred to above.

He concluded his submissions by noting that from his “perspective as the Applicant” the remitter option was “not without its advantages”, including in particular that it would retain for him an avenue of appeal in the event that he “happen[ed] to be dissatisfied with a decision” of the Common Law Division. He also noted:

The appropriate order is to take the course provided by s 51(2)(b) and remit notice of motion to the Common Law Division of the Supreme Court for determination. With respect to the claims against the second to seventh respondents, the Common Law Division may wish to give consideration to the exercise of its power of summary dismissal, or its powers under the Uniform Civil Procedure Rules 2005 (NSW), r 14.28.

The orders I make are: