Mohareb v Kelso

By an amended notice of motion dated 10 December 2021, Nader Mohareb (the plaintiff) seeks orders which have been pleaded in the following terms:

The notice of motion is supported by an affidavit of the plaintiff of 14 December 2021.

There was no appearance by or on behalf of the defendant when the notice of motion came before me for hearing.

The background to the present motion, and the nature of the orders sought by the plaintiff, are reflected in the following exchange which took place with the plaintiff in the course of the hearing: [1]

In determining whether the orders sought by the plaintiff should be made, I have had some difficulty in ascertaining the cause of action he seeks to bring. That said, for the purposes of determining the amended motion, I am not required to determine whether any cause of action can ultimately be made out.

The plaintiff seeks access to a District Court file which is said to be held in the Registry of this Court, relating to the criminal proceedings which were brought against the defendant. The terms of the order sought erroneously refer to the defendant being charged with the “attempted murder” of the plaintiff. However, the file is conceivably relevant to the plaintiff's apparent cause of action and in my view he should be granted access to it.

Order 2 seeks leave to issue a subpoena to the NSW Director of Public Prosecutions for production of the file in relation to the defendant's prosecution. [2] The plaintiff's written submissions do not squarely address why the subpoena is sought to be issued. Notwithstanding that, I am prepared to accept that the material sought may be relevant.

For those reasons I propose to grant leave to the plaintiff to issue the subpoena.

For the same reasons as those articulated in respect of order 2, the plaintiff should be granted leave to issue a subpoena to the NSW Police. However, I am not satisfied that there is any legitimate forensic purpose in seeking the production of material containing the defendant 's personal contact details.

On the plaintiff's case, the contempt which was committed by the defendant is said to be constituted by the attack which resulted in the defendant being charged and sentenced to a Community Corrections Order. The defendant 's performance of his obligations under that Order obviously came after the events which are apparently relied upon by the plaintiff to constitute the contempt. Notwithstanding that, I am prepared to accept that the material sought may have some relevance and in those circumstances, I propose to grant the plaintiff leave to issue a subpoena. However, for the reasons previously stated I am not persuaded that there is any legitimate forensic purpose in the plaintiff seeking production of material containing the defendant's personal contact details.

The plaintiff seeks an order pursuant to Part 55 r 10 of the Supreme Court Rules (NSW) which is in the following terms:

I am not persuaded that a warrant should be issued for the defendant 's arrest. In particular, and notwithstanding the fact that the defendant did not appear before me at the hearing of the of the present motion, there is no evidence that he is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court. As a result, one of the conditions precedent to the issue of a warrant is not satisfied.

On 25 February 2021 the plaintiff filed a motion in the District Court seeking leave to (into alia) prosecute the defendant for attempting to pervert the course of justice, and for perjury. That motion also sought leave to bring similar proceedings against Vanessa Kelso. Ms Kelso is not a party to the proceedings which are before this Court. The plaintiff seeks an order that this motion be “transferred” to this Court and “consolidated” with the present proceeding.

The evidence before me provides no proper basis for the order which is sought. It is up to the plaintiff, if he wishes to do so, to bring a motion before this Court in these proceedings at some future time seeking appropriate orders.

Order 7 seeks leave to allow the plaintiff to further amend his summons to (into alia) include a cause of action in defamation. Bearing in mind the necessity for all of the issues in dispute to be determined, an order granting leave to the plaintiff to amend his summons should be made.

For the foregoing reasons I make the following orders: