Mohareb v Palmer

BASTEN JA: The applicant, Nader Mohareb, sought leave to appeal from a judgment of Fagan J in the Common Law Division making orders under the Vexatious Proceedings Act 2008 (NSW), prohibiting the applicant from initiating fresh proceedings, without leave of the court.

At the commencement of the hearing, the applicant sought my recusal. I declined the application, indicating that I would give reasons for that decision when judgment was delivered on the substance of the application. [1]

The application under the Vexatious Proceedings Act was brought on the motion of the respondent, Matthew Palmer, who had been the subject of a number of proceedings brought against him by the applicant. The basis of the application was that the applicant had “frequently instituted or conducted vexatious proceedings” as provided in s 8(1)(a) of the Act. “Vexatious proceedings” include proceedings “instituted or pursued without reasonable ground”, as noted in the definition in s 6(c) of the Vexatious Proceedings Act.

In support of that application, a number of proceedings were identified as having been commenced without reasonable grounds. They were characterised numerically by the trial judge as the first-tenth proceedings. The application was based on two applications for leave to appeal which had come before this Court, when I was sitting. One, heard on 2 November 2017, was identified as the “sixth proceeding” in the judgment of the trial judge. [2] That matter involved an application for leave to appeal from the refusal of Mr Mohareb’s application for leave to bring a prosecution for perjury, pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW). The application for leave to appeal was brought from a decision of Gibson DCJ in the District Court given on 13 February 2017 refusing leave to prosecute Mr Palmer for perjury.

The issues raised in the fifth and sixth proceedings are identified in the judgments dismissing the appeal in this matter. It is sufficient to note for present purposes that in the judgment refusing leave to appeal, I dealt separately with two separate perjury allegations. With respect to the first allegation my conclusion was in the following terms:

With respect to the second allegation, Gibson DCJ had disbelieved a statement made by Mr Palmer under cross-examination, but nevertheless refused leave to prosecute Mr Palmer for perjury. In dealing with the application for leave to appeal, I wrote:

Finally, the sixth matter contained a challenge to the refusal of Gibson DCJ to refer to the Supreme Court for proceedings by way of contempt of court alleged conduct of Mr Palmer. In the course of dismissing the application for leave to appeal from that finding, I noted that, at one point, the judge had expressed herself in terms which did not reflect the language of the legal test to be applied. [3] However, the judge returned to the correct test in reaching a conclusion. It followed that the primary judge had not misapplied the law and there was “no reasonable likelihood that this Court would interfere with the order.” Accordingly, leave to appeal was refused. [4]

In his submissions on the recusal application, Mr Mohareb noted that one ground of his proposed appeal in the sixth proceeding had been bias on the part of Gibson DCJ. In that respect he submitted: [5]

The applicant relied upon the transcript of the hearing in this Court to maintain that proposition. He submitted that the other member of the Court, Sackville AJA, had been “angry and outraged” at the allegation of bias on the part of the District Court judge. [6]

The transcript of the hearing of 2 November 2017 was in the materials relevant to the sixth proceeding. Reading the transcript demonstrates that (i) the Court was familiar with the judgment from which an appeal was sought to be brought and with the applicant’s written submissions on the leave application; (ii) the applicant was given the usual opportunity on a leave application, of which he availed himself, to address the Court and (iii) both orally and in writing, he addressed the ground of apprehension of bias. It was dealt with in the judgment in the following terms:

The applicant referred to a separate leave application involving a different respondent, on which I had sat. Apart from the fact that the Court had refused leave to appeal, there was no specific basis relied upon to demonstrate how that matter was relevant to the present proceeding, which was not based on that particular earlier judgment.

The principles governing a recusal application are not in doubt. A judge should not sit if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [7] Such an apprehension may arise where the judge has had to consider matters involving the credit of a witness in a previous proceeding and has made adverse findings. [8] That is not this case.

It is true that, in the sixth proceeding, my reasons for judgment concluded with the following paragraphs:

These were non-dispositive statements based upon what appeared to be the objective circumstances known to the Court. The hypothetical bystander had no reason to think I might not review those findings if the evidence demonstrated that they were erroneous.

For these reasons, I declined the recusal application.