Mohareb v Local Court of New South Wales

1. [1]

   THE COURT: The genesis of these proceedings lies in two criminal charges against Mr Nader Mohareb, the applicant, in the Local Court at Manly. That Court is the first respondent. The informant, Constable Aden Murphy, is the second respondent. It is alleged that on 9 March 2022 Mr Mohareb threw and broke a dining plate and bowl in the presence of his mother during the course of an argument between the two in the property at which they both reside. He has been charged with destroying or damaging another’s property, under s 195(1) of the Crimes Act 1900 (NSW), and with stalking or intimidation with intent to cause fear of physical or mental harm under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The hearing of the charges has yet to occur, having been delayed by this dispute.

2. [2]

   Mr Mohareb sought to issue two subpoenas for production. A registrar refused leave to do so. Mr Mohareb then applied for a review of that decision before a magistrate. On 13 July 2022 Magistrate Denes refused the application. Mr Mohareb then brought proceedings in the Supreme Court both seeking leave to appeal the magistrate’s decision, pursuant to Pt 5 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), and seeking judicial review of the decision. The primary judge, Button J, dismissed the application on 5 April 2024, having heard the matter just over two weeks prior: Mohareb v Manly Local Court [2024] NSWSC 345 (PJ). There had been a long delay of some 20 months between the magistrate’s decision and the matter being heard by the Supreme Court. This delay seems mainly to have been caused by various interlocutory disputes relating to the proceeding, such as whether it was necessary for the informant to be joined, combined with various adjournments sought by the parties, in part to allow negotiations to take place.

3. [3]

   The applicant now seeks leave to appeal to this Court from the decision of the primary judge. His draft notice of appeal sets out 16 grounds of appeal.

4. [4]

   For the reasons that follow the application for leave to appeal will be refused with costs. This judgment addresses the issues raised in the following order:

   1. (1)

      the context of the application;

   2. (2)

      leave to appeal is required (the applicant had suggested at one stage that it was not);

   3. (3)

      principles relating to granting leave to appeal and the extent to which this Court is required to give reasons; and

   4. (4)

      why leave to appeal should be refused.

Context

1. [5]

   On 29 June 2022 Mr Mohareb applied to a Local Court registrar at Manly for leave to issue two subpoenas for production addressed respectively to “NSW Police Force – Northern Beaches Area Command” and the “Manly Hospital Psychiatric Ward”. Both Magistrate Denes and Button J indicated that neither was addressed to the correct person. In this Court the second respondent indicated that the proper addressees should respectively have been the Commissioner of the New South Wales Police Force and the proper officer of the Northern Sydney Local Health District (NSLHD). That issue, however, was not what was determinative below.

2. [6]

   The proposed subpoena against the Police sought production of documents within four categories (as written):

3. [7]

   The proposed subpoena against the hospital sought production of “[c]opies of Manly Hospital psychiatric ward’s records of & reports about, the victim’s past admittance – at the request of the NSW Ambulance Services – to the Manly Hospital psychiatric ward”.

4. [8]

   In neither subpoena was the “victim” identified. The Police no doubt would have been able to identify her, having laid the charges. There is no apparent reason the NSLHD would have been able to do so.

5. [9]

   Subpoenas in the Local Court are issued by registrars: Criminal Procedure Act 1986 (NSW), s 222; Local Court Act 2007 (NSW), s 66. Under r 6.2(2) of the Local Court Rules 2009 (NSW) a registrar may refuse to issue a subpoena if satisfied that doing so “would be an abuse of process” or “would be oppressive on the person named”. On 5 July 2022 a registrar refused to issue the two subpoenas sought on the basis that they would be an abuse of process.

6. [10]

   Mr Mohareb sought a review of that refusal pursuant to r 8.8 of the Local Court Rules. On 13 July 2022 Magistrate Denes dismissed Mr Mohareb’s application in an ex tempore judgment. Her Honour’s order was to “set aside” both subpoenas. Strictly that decision should have resulted in an order confirming the registrar’s decision. However, as Button J later said, Mr Mohareb’s attempt to overturn the magistrate’s decision by reason of that irregularity was “excessive formalism” (PJ [76]). Magistrate Denes noted that the subpoenas were not correctly addressed but appropriately observed that “that can be rectified; he is self-represented”. Her Honour’s reasons for dismissing the application were to the effect that the categories of document sought were too broad and exceeded any legitimate forensic purpose. She made some reference to whether or not any material produced would be admissible. She concluded her remarks with this suggestion:

7. [11]

   On 12 August 2022 Mr Mohareb filed proceedings in the Supreme Court challenging Magistrate Denes’ decision, on two bases. He sought certiorari and related judicial review relief for error of law on the face of the record, and sought leave to appeal the decision under s 53(3) within Pt 5 of the CAR Act (for which he sought an extension of time). Seven appeal grounds were listed in his amended summons.

8. [12]

   After Mr Mohareb filed his application in the Supreme Court Mr Nicholas Regener, the solicitor for the informant, and Mr Mohareb sensibly conducted negotiations about the scope of the subpoenas to seek to resolve the dispute. They got very close to doing so. Mr Regener had obtained instructions on behalf of the Commissioner and NSLHD in this regard. Evidence of those negotiations was admitted in the proceedings below, without objection, and was before this Court. It seems that by 21 April 2023 Mr Mohareb and Mr Regener had reached agreement that NSLHD would not object to a subpoena issuing in the Local Court seeking production from it of the following documents:

9. [13]

   On the same date, as regards the subpoena Mr Mohareb wished to direct to the Police, Mr Regener made an offer on behalf of the Commissioner that no objection would be taken to a subpoena issuing in the Local Court seeking production from the Police of the following:

10. [14]

    By implication, the offer was that the Supreme Court proceedings be dismissed with no order as to costs. On 9 June 2023 Mr Mohareb responded by email attaching proposed consent orders. Those orders slightly altered the formulation of the categories proposed by Mr Regener but not in any substantial way. There were three key differences. First, Mr Mohareb wanted the agreement recorded in orders of the Supreme Court directing the Commissioner of Police and the NSLHD to produce the documents in question. Second, he wanted an order that if any of the material sought was not available then the informant or NSLHD (as applicable) “is to make arrangements for the associated police officers [or practitioners] to appear in Court to give evidence about that material”. It can be noted that such orders were too vague to be appropriate. Third, he wanted an order that the Local Court pay his filing fees in the Supreme Court, amounting to a total of $1,872. Mr Regener declined to consent to those orders (and he could not have done so as regards the Local Court paying Mr Mohareb’s costs).

11. [15]

    There were various further exchanges. On 11 June 2023 and 21 September 2023 Mr Regener reiterated the offer he had made on 21 April 2023. Mr Mohareb re-put his proposed consent orders. In his email of 21 September 2023 Mr Regener said that his client “does not presently press for an order for her costs [seemingly referring to the Commissioner], but may do so should you refuse to conclude the proceedings timeously”. Mr Mohareb, who had asserted that an oral agreement had been reached, took umbrage at this email, saying:

12. [16]

    And so it did. The matter was heard by Button J on 18 March 2024. On 5 April 2024 his Honour delivered judgment dismissing the amended summons, with the parties to bear their own costs of the proceedings. His Honour noted there was a “plethora of disputes” before him (PJ [11]). Relevantly, those included:

    1. (1)

       whether the second respondent, the informant in the Local Court criminal proceedings, should have been joined as party (as had been required by a registrar of the Supreme Court in order to ensure there was a contradictor – Mr Mohareb sought to reverse that decision);

    2. (2)

       whether the magistrate erred as alleged in refusing to issue the subpoenas;

    3. (3)

       various disputes relating to costs.

13. [17]

    As to the first issue, his Honour said that it is “inconceivable, indeed bordering on the absurd, to suggest that [such proceedings] could be determined without the informant in those criminal proceedings having a right to be heard about the appropriateness of any such relief” (PJ [13]).

14. [18]

    In relation to the second issue, the informant conceded that Magistrate Denes had erred with respect to the subpoena to Police in that (it was said) she treated the question of admissibility of any documents produced as determinative of the question of whether the subpoena should issue: see PJ [62]. Nevertheless, it was argued that it was still correct to refuse the subpoena given the claimed formal error in the addressees: PJ [64]. The informant indicated to the Court that he had obtained instructions that the Commissioner and the Northern Sydney Local Health District “would consent” to subpoenas being issued to them in the terms previously offered to Mr Mohareb. Button J did not accept the second respondent’s concession that the magistrate had erred, saying that he did not read the reference to admissibility as being determinative (PJ [68]-[69]). After addressing the claimed errors in the magistrate’s decision his Honour expressed his conclusion as follows:

15. [19]

    In relation to the third issue, one of the issues relating to costs was that Mr Mohareb had foreshadowed that if successful he would seek an order that the Local Court (or perhaps Magistrate Denes herself) pay costs. That led to an unusual feature of the litigation: a solicitor appeared and made submissions for that court. In the end the issue did not arise given the outcome. Nevertheless, Button J described the application for such an order as “thoroughly ill-conceived” (PJ [100]). That description was unsurprising. Costs orders are not made against courts when appeals or judicial review applications are upheld.

16. [20]

    Mr Mohareb then sought leave to appeal from the decision of Button J to this Court. After the matter was listed for a hearing of the leave application Mr Mohareb filed a motion seeking that the President’s determination that the matter be listed for a leave-alone hearing be varied such that the hearing be treated as an appeal as of right or that there be a concurrent hearing of the application for leave and the appeal. He alternatively sought an order that the hearing on 26 September 2024 be adjourned. Gleeson JA dismissed those applications: Mohareb v Manly Local Court [2024] NSWCA 233. His Honour also rejected an application that he disqualify himself from determining the motion: Mohareb v Manly Local Court (No 2) [2024] NSWCA 234.

Leave to appeal is required

1. [21]

   The applicant had submitted in writing that he did not need leave to appeal but he did not press that submission orally. For the avoidance of doubt it is best to address the point. Section 101(1) of the Supreme Court Act 1970 (NSW) provides for appeals to this Court from the Supreme Court. That right to appeal is subject to obtaining leave to appeal in the categories of cases set out in s 101(2). It relevantly provides:

2. [22]

   Button J’s decision determined an application to appeal under Pt 5 of the CAR Act. To that extent leave to appeal is required pursuant to s 101(2)(h).

3. [23]

   The second respondent argued that leave to appeal was also required because the decision was interlocutory (falling with s 101(2)(e)), involving as it did whether or not subpoenas should issue. That is incorrect. The decisions of the registrar and the magistrate were interlocutory. The application to the Supreme Court from that decision involved a new proceeding, being an appeal under the CAR Act and an application for judicial review. The decision of Button J was a final determination of that proceeding.

4. [24]

   For that reason s 101(2)(r) applied. As this Court has said, “[g]enerally, all cases not having a readily ascertainable monetary value (including appeals involving the liberty of the individual) require leave under s 101(2)(r)”: Marroun v State Transit Authority [2017] NSWCA 273; (2017) 96 NSWLR 295 at [12]; see also McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 at [89]. Mr Mohareb’s case concerns the issuance of subpoenas in the context of a prosecution. It has no readily ascertainable monetary value. Mr Mohareb therefore does require leave to appeal in relation to all issues raised in the appeal.

Principles on granting leave to appeal and the requirement for reasons

1. [25]

   Section 101(2) of the Supreme Court Act refers to this Court granting leave to a party to appeal but does not specify any criteria by which the discretion is to be exercised. In the usual way of the common law method, statements of principle have evolved to guide the exercise of discretion. This Court has stated on numerous cases that it is usually or generally only appropriate to grant leave to appeal concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl Ltd) [1995] NSWCA 69 per Kirby P; The Age Company Ltd v Liu [2013] NSWCA 26; (2013) 82 NSWLR 268 at [13]; see more recently eg Shapkin v The University of Sydney [2024] NSWCA 156 at [39]. It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of “usually” and “generally”, whilst those factors are important they are neither exhaustive nor necessarily determinative. Thus this Court has also said, for example, that “leave should be granted only where there are substantial reasons to allow an appellate review … such as where there is an error of principle which, if uncorrected, will result in substantial injustice”: Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25].

2. [26]

   There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant.

3. [27]

   For example, it has often been said that particular caution is called for in granting leave to appeal a decision pertaining to practice and procedure: eg Adam P Brown at 177; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3].

4. [28]

   As with any exercise of a discretionary power by a court, the utility of what is sought may be significant.

5. [29]

   The Court has also been cautious about granting leave to appeal where only small monetary sums are involved: see eg Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126 at [4]-[5]; Rodi at [25]; Toth v State of New South Wales [2022] NSWCA 185 at [6]-[14]. The Court said the following in Toth:

6. [30]

   As referred to in Toth at [9], s 60 of the Civil Procedure Act 2005 (NSW) may be relevant. It requires that “the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.

7. [31]

   More broadly, the matters addressed in ss 56-58 of the Civil Procedure Act may also be pertinent. The analysis of Basten JA in Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 is worth repeating:

8. [32]

   These principles are also relevant to the duty of this Court to give reasons for refusing leave to appeal. As Basten JA noted, by reference to High Court authority, the very purpose of a leave requirement is to provide a means of enabling the court to control in some measure the volume of appellate work requiring its attention. Where an application for leave to appeal is not being heard concurrently with the appeal then the application generally is determined by two judges of the Court, consistently with s 46B of the Supreme Court Act. Even allowing for the fact that two rather than three judges of appeal are sitting, the purpose of the leave requirement would be undermined were it necessary for the Court to provide detailed reasons for dismissing an application for leave to appeal (commonly no reasons are given if the application is granted).

9. [33]

   When the High Court dismisses special leave applications it has long done so in one or two sentences. A key difference, of course, between that Court and this one is that there is no further possibility of appeal from the High Court. Where there is a right of appeal, there is a “need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal”: DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [32] (citation omitted). However, “the content and detail of the reasons to be provided … will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”: Wainohu v State of New South Wales [2011] HCA 24; (2011) 243 CLR 181 at [56] (citations omitted), see also at [147]; DL at [32].

10. [34]

    Deciding whether to grant leave to appeal is an interlocutory decision: Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 152-153. It is not an appeal. It does not finally determine the legal issues at stake. The Court is exercising a broad discretionary power, guided by considerations relevant to the interests of justice, and which is in exercise of a provision meant to serve as a gateway mechanism to determine whether a full hearing of the appeal is appropriate. In this context, in general, the Court need not give extensive reasons for dismissing an application for leave to appeal. They should be sufficient to articulate for the benefit of the parties and, if special leave is sought, the High Court, the core reasons why the Court was not persuaded to exercise its discretion to grant leave to appeal. They can be short. To require extensive reasons – eg addressing in detail all arguments made or grounds raised by an applicant – would be to defeat the very purpose of having a leave gateway: see eg La La Land Byron Bay Pty Ltd v Independent Liquor and Gaming Authority [2015] NSWCA 254 at [9]-[10].

11. [35]

    So much has been recognised by the High Court. Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 concerned a case where a party sought leave to appeal to the Victorian Supreme Court from a decision of a tribunal. A judge declined to grant leave without giving reasons. Four members of the High Court said that “it is usual to give short reasons for refusing leave or special leave to appeal. Not giving reasons is exceptional” (at [25]). As to what type of reasons are needed, they said:

12. [36]

    Much the same may be said of this Court’s duty to give reasons on an application for leave to appeal.

Determination of application for leave to appeal

1. [37]

   The first of the 16 grounds in Mr Mohareb’s draft notice of appeal alleged that the findings and orders of Magistrate Denes and Button J had “the effect of denying the applicant, in his capacity as a self-represented litigant, the due process that is accorded, as a matter of course, to represented litigants”. The claim is unfounded. To a substantial extent it seems be based on the fact that Mr Mohareb did not obtain the results he sought. More generally, Beazley JA summarised the role of a court in dealing with a self-represented litigant in Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]. Her Honour said that the Court’s obligation is to ensure a fair trial for all parties (see also Bauskis v Liew [2013] NSWCA 297 at [66]-[70]). That may involve taking steps to seek to ensure that the litigant “has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial” (Hamod at [311]). But it “does not extend to advising the accused as to how his or her rights should be exercised”, and “it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant” (at [312]).

2. [38]

   In substance the remaining grounds in the draft notice claim that Button J erred in failing to find that Magistrate Denes had erred in various ways. We are not persuaded that there is any reasonably clear injustice going beyond something that is merely arguable. Mr Mohareb also seeks to argue that various issues of legal principle arise. Yet even if that were so, there is good cause not to open the gateway to appellate review of the decision of the primary judge.

3. [39]

   As explained above (at [12]-[15]), any dispute about the scope of the two subpoenas had substantially been resolved prior to the Supreme Court hearing. We asked Mr Mohareb at the hearing of this application whether he was still content with the scope of the subpoenas that had been proposed by Mr Regener (relevantly on behalf of the Commissioner and the NSLHD) and he indicated that “in principle” he was. The attempt to resolve the dispute prior to the hearing below seemed to have failed for the three reasons summarised above at [14]. The second of those has already been addressed (ibid).

4. [40]

   The first was that Mr Mohareb wanted the certainty of orders being made by the Supreme Court rather than having to return to the Local Court to seek the subpoenas. True it is that the agreement of the recipients of the subpoena that they are reasonable does not bind the Local Court. In practical terms, however, a registrar or magistrate in that court would be most unlikely to decline to grant subpoenas in those terms in all the circumstances of this case (assuming no material change in circumstances between now and when the issue is determined by that Court). And that would have been so at the stage of agreement having been reached after the Supreme Court proceedings had been commenced and before being heard.

5. [41]

   The third barrier to settlement was Mr Mohareb’s desire to receive his costs of the filing fees in the Supreme Court. There will be few if any cases where that would be a sufficient reason to grant leave to appeal.

6. [42]

   Mr Mohareb’s detailed grounds of appeal, along with the history of the matter more generally, illustrate the disproportionality of the proceedings. The application to this Court represents the fourth level of curial consideration of issues relating to two subpoenas in a criminal matter in the Local Court, where those subpoenas had been expressed in very broad terms, were in any event seemingly not addressed to the correct legal entity, where (as the magistrate noted in her reasons) it remained open to the applicant to seek leave to issue more focused subpoenas, and where the applicant and the proposed recipients of the subpoenas had substantially reached agreement on acceptable terms for the subpoenas prior to the Supreme Court hearing. Mr Mohareb has made a mountain out of a molehill. In so doing the prompt resolution of a criminal matter has been delayed by over two years. This line of disputation must end.

Orders

1. [43]

   The first respondent sought that it be described as the “Local Court of New South Wales”, rather than as “Manly Local Court”, so as to cohere with s 7(1) of the Local Court Act. That order was not opposed and should be made. As the applicant accepted in his submissions, there is no reason that costs should not follow the event. Given the issue that arose below as to whether the Local Court should be ordered to pay the costs of Mr Mohareb, that liability should extend to the costs of the first respondent.

2. [44]

   The orders of the Court are as follows:

   1. (1)

      The first respondent be named the “Local Court of New South Wales” instead of “Manly Local Court”.

   2. (2)

      The application for leave to appeal is dismissed.

   3. (3)

      The applicant is to pay the costs of the first and second respondents.