Mohareb v Palmer (No 2)

1. [1]

   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. [1]

Background to proceedings

1. [2]

   The history of proceedings between the applicant and the respondent dates back to 19 August 2014 when the applicant brought a claim in defamation in the District Court. The claim was founded on a poster placed in public areas around Scotland Island on Pittwater, where they both lived. [2] Although there were difficulties in pleading the claim, it was not suggested that that proceeding was instituted without reasonable grounds.

2. [3]

   In fact, the proceedings were settled with the respondent agreeing to post an apology within 14 days on a Facebook page managed by the Scotland Island community. The proceedings were to be discontinued on that basis.

3. [4]

   An apology was posted, but taken down the following day. Why it was taken down was a matter of dispute. Mr Palmer alleged that it was taken down by the moderator. That appears to have been the case, as the moderator had not been informed of the settlement agreement. The apology was then reinstated by the moderator, but removed, as the judge concluded, by the respondent. [3] The judge stated:

4. [5]

   The basis for this conclusion followed in part from the following material set out by the judge:

5. [6]

   The judge also noted:

6. [7]

   The apology was eventually posted, but not within the 14 day period provided by the deed. Mr Mohareb declined to discontinue the proceedings, but the judge ordered that they be dismissed.

Legislation

1. [8]

   The Vexatious Proceedings Act confers power on the Supreme Court to make a “vexatious proceedings order” in relation to a person, “if satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia”.

2. [9]

   An order may be sought by the Attorney General, and by a person against whom vexatious proceedings have been brought: s 8(4). The term “proceedings” is defined broadly to include interlocutory applications, applications for leave to appeal, and appeals: s 4.

3. [10]

   The term “vexatious proceedings” is defined, as follows:

4. [11]

   By s 8(7) the orders that may be made are:

5. [12]

   A person prohibited from instituting proceedings under s 8(7)(b) may apply to the Supreme Court for leave to institute proceedings: s 14(2).

First proceeding

1. [13]

   What was described by the trial judge as the “first proceeding” was a notice of motion in the defamation proceedings, filed on 29 May 2015 seeking leave to prosecute Mr Palmer for perjury. In fact the “first proceeding” identified in the statement of particulars accompanying the respondent’s summons was the defamation proceeding which was settled. Mr Palmer complained that Mr Mohareb’s conduct had “imposed such a significant financial burden and unreasonable delay” that he (Palmer) “was forced to settle”. [5] This complaint was not relied on (or addressed) by the primary judge.

2. [14]

   The issue addressed by the primary judge (the perjury application) was Mr Palmer’s “second proceeding”. The issue was dealt with briefly by Gibson DCJ in her judgment of 30 July 2015, stating: [6]

3. [15]

   The key point raised by the judge was that the moderator, Mr van Mierlo, had stated that he “initially” was responsible for taking the post down. The judge put that to Mr Mohareb in the course of submissions: [7]

4. [16]

   Mr Mohareb then sought to draw attention to what appears to have been the respondent’s affidavit. It is a fair inference that the submission he was seeking to make related to the statements in the affidavit as to what happened after the apology was reinstated, evidence which the judge rejected in the passages set out above.

5. [17]

   The manner in which Mr Mohareb presented his case was part of the complaint, but the finding that the proceeding was vexatious relied on a lack of reasonable grounds to institute proceedings (that is to file the notice of motion) under s 6(c). [8] The applicant’s case was that Mr Palmer falsely denied that he was responsible for taking down the apology after it was reinstated. The judge had made a finding of fact to that effect. In my view, the filing of the notice of motion was not without reasonable grounds.

6. [18]

   In so far as the vexatious proceeding order was sought by reference to the filing of this notice of motion, that basis should have been dismissed.

7. [19]

   The primary judge said that Mr Mohareb’s application “would inevitably have been dismissed on discretionary grounds even if he had been able to formulate a charge.” [9] That may be so, but it does not demonstrate that the application was made without reasonable grounds. The fact that he could not articulate the grounds when required to do so in the course of the hearing on 5 June 2015 does not mean there were no reasonable grounds. Objectively assessed, in my view there were.

Second proceeding

1. [20]

   The second proceeding identified by the primary judge arose out of the dismissal of the notice of motion considered above. On 21 August 2015 the applicant filed a summons in this Court seeking leave to appeal from the dismissal of the notice of motion. He identified the nature of the case in the summons in the following terms:

2. [21]

   The last two words were clearly erroneous: the judge had not accepted the respondent’s evidence in that respect. The point was clearly articulated in submissions prepared by counsel in support of the application for leave to appeal.

3. [22]

   The application for leave to appeal was heard on 24 November 2015. The summons was dismissed with costs. [10] The application was dismissed because it was said that the false statement in the respondent’s affidavit was not “and certainly was not sufficiently clearly, the subject of the application for leave”: at [15].

4. [23]

   The conclusion that the application to this Court was without reasonable grounds is not, in my view, apparent on the face of the documents; nor does it appear from the judgment of this Court. The application was presented by counsel. The proposition that there were no grounds to support the application, and the implication that it was therefore hopeless, implies that counsel appearing for Mr Mohareb acted in contravention of his duty to the court. I see no reason to reach such a conclusion; while the refusal of the application was undoubtedly justifiable, the application itself was not brought without reasonable grounds.

5. [24]

   The basis of this assessment of counsel’s duty should be explained. [11] Section 62 and Sch 2, cl 2(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) provide that a legal practitioner (including a barrister [12] ) “must not provide legal services on a claim or defence of a claim for damages unless [he or she] reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence … has reasonable prospects of success.” It was expressed to apply to appeals: cl 1(1). A contravention of this provision is “capable of being unsatisfactory professional conduct or professional misconduct”: Sch 2, cl 4(1). The provision was not new when it came into force on 1 July 2015, five months before the hearing of the leave application. [13]

6. [25]

   It is not necessary to determine whether these provisions directly apply to a leave application, which involves satellite litigation to a claim for damages; the obligations they impose are closely related to those imposed by s 56 of the Civil Procedure Act 2005 (NSW), which controls satellite litigation, [14] and would be so understood by counsel.

7. [26]

   The primary judge dealt with this proceeding in three paragraphs. The gravamen of the reasoning appears to be contained in the following proposition:

8. [27]

   There is a further reason for concluding that neither the first nor the second proceeding was vexatious. In 2016 the Attorney had brought proceedings under the Vexatious Proceedings Act against Mr Mohareb, relying in part on the first and second proceedings discussed above. The application was dismissed by Schmidt J. [15] Schmidt J held that the first and second proceedings were not vexatious proceedings. On one view, that issue was a matter of res judicata between the Attorney and Mr Mohareb. While it is true that the present proceedings were instituted by Mr Palmer, and not the Attorney, the judgment of Fagan J has been defended in this Court by the Attorney. The Attorney was joined on his own motion as the second respondent; he did not appear for Mr Palmer, but took over the defence of the judgment below. Even if that had not been so, it would arguably be an abuse of process for the putative victim, Mr Palmer, in fresh proceedings against Mr Mohareb, to have sought to rely upon the same proceedings as those relied upon unsuccessfully by the Attorney.

9. [28]

   The primary judge dismissed that concern on the basis of the specific grounds relied upon in s 6 of the Vexatious Proceedings Act and the fact that Schmidt J had determined the issue purely by reference to “the criterion of deliberate intent to harass or annoy”, referring to the following passage in the earlier judgment:

10. [29]

    No argument was put in this Court as to why the category of abuse of process identified in Port of Melbourne Authority v Anshun Pty Ltd [16] would not operate in the present circumstances. In other words, it was open to the Attorney to have sought to characterise the proceedings as vexatious on any basis found in s 6 of the Act; to choose a specific ground as opposed to another ground should not allow the proceedings to be reagitated on some other ground if initially unsuccessful. Mr Palmer relied on all four limbs of s 6; the primary judge chose a limb not agitated in the earlier application.

11. [30]

    Were they not dismissed on the merits as not shown to be vexatious, the first and second proceedings should have been dismissed on the basis that it was an abuse for Mr Palmer to run a case which sought to reagitate an issue which had already been disposed of in Mr Mohareb’s favour in the proceedings brought by the Attorney.

Third and fourth proceedings

1. [31]

   The third proceeding concerned a further application in the District Court for leave to prosecute Mr Palmer for perjury, correcting the earlier error identified as a failure to provide proper particulars. The fourth proceeding was an appeal to this Court from the judge’s refusal to grant leave with respect to the particularised matter. The applicant’s case before Gibson DCJ was presented by counsel. Again, to conclude that the proceeding was groundless implied that counsel was probably in breach of his duty to the court in presenting the case. Caution should be adopted in assessing the commencement of proceedings as so fundamentally misconceived as to warrant the conclusion that they were groundless. [17]

2. [32]

   This Court granted leave to appeal. The grounds on which leave are granted are well understood: they require that there be an issue of principle involved, or that the alleged error be more than reasonably arguable and that failure to intervene would give rise to a miscarriage of justice. [18] The primary judge considered that the court would have refused leave if it had “received more assistance”. That proposition may have carried weight if, on the hearing of the appeal, the Court had revoked the grant of leave on the basis that it was made under a misapprehension. In fact, the Court made no such order; [19] rather, in considering costs, the Court stated:

3. [33]

   In these circumstances, I agree with Simpson AJA that the third and fourth proceedings were not shown to be vexatious.

Fifth proceeding

1. [34]

   The fifth proceeding involved two motions in the District Court. The motion filed on 13 February 2017 sought leave to prosecute two further charges of perjury against Mr Palmer, arising out of evidence given in the course of the earlier proceedings, following the settlement agreement, on 5 June 2015. The first charge related to evidence the respondent gave in cross-examination as to his instructions to his legal representatives in relation to a Facebook messaging conversation he had had with the moderator of the page. The second matter concerned Mr Palmer’s denial on oath as to knowing who had removed the apology from the page and his denial that it was he who did so. [20] As Gibson DCJ explained, the difference from the earlier proceedings was that there was no longer reliance upon the respondent’s affidavit, but rather his answers in the witness box. [21]

2. [35]

   As the judge noted, the applicant’s submissions that those passages were false and must have been known to be false were “confirmed by the findings in [her earlier] judgment that, in circumstances where I accepted Mr Van Mierlo’s evidence over that of the [respondent] as to who removed the post.” [22]

3. [36]

   It is true that, in her judgment of 4 March 2016, the judge found that omission from the affidavit prepared by the plaintiff’s legal advisors was “not a deliberate and positive statement on oath” and was made in circumstances where he told the court that “his instructions to the solicitors preparing this affidavit were to set out the entirety of the conversations and dealings.” [23] However, if it were the case that the respondent had lied in denying on oath that he had taken the Facebook post down after it had been reinstated by the moderator, it was at least implausible that he had earlier told his solicitors to include an admission, contrary to his later evidence, in his affidavit. It will be recalled, that in her judgment of 30 July 2015, the judge had recorded that she was “comfortably satisfied” that the respondent was responsible for removing the reinstated apology. In substance, the judge appears to have changed her view on the basis of evidence in relation to the operation of the Facebook page given in the 2016 proceedings. She also expressed considerable reservations about the adequacy of that evidence, and the absence of expert evidence as to how the site operated.

4. [37]

   Applying an objective test, the circumstances following the 2016 judgment removed any realistic basis for a successful prosecution for perjury. That material was available to the applicant when he commenced the proceeding by notice of motion in February 2017.

5. [38]

   I would conclude that for these reasons, the application for leave to commence proceedings for perjury, identified in the notice of motion of 13 February 2017, was instituted without reasonable grounds.

6. [39]

   The second motion the subject of the fifth proceeding was the application to refer the respondent to the Supreme Court on a charge of contempt of court. The notice of motion was filed on 12 May 2016 and was accompanied by an affidavit bearing the same date. The applicant alleged that, at about 11am on 1 April 2016 he had served by email a notice of intention to appeal relating to the defamation proceedings. At about 6pm on that day, he encountered the respondent in the Church Point car park and said that he was “verbally abused by the respondent and physically assaulted.” He stated that the reason for the physical assault was to intimidate him into ceasing to pursue his legal proceedings against the respondent.

7. [40]

   The respondent filed a motion seeking to strike out the applicant’s motion on the basis that it failed to demonstrate “a nexus between the alleged assault and the alleged contempt.” That was presumably intended to mean that there was no evidence to support the inference of intimidation in relation to the legal proceedings. Gibson DCJ was satisfied that an assault had taken place and that the respondent had sent an email in reply which the judge described as “insulting and derogatory”. [24] With respect to the assault, the judge was satisfied that the assault had occurred but considered the parties largely equally to blame and was satisfied that “the assault was not for the purpose of intimidating the plaintiff into dropping his application for leave to appeal but from the misfortune of the chance encounter.” There were “insults traded between two angry men.” [25] She continued:

8. [41]

   Although the judge was correct to refuse to refer the matter for the prosecution of a contempt, in circumstances where there was clearly a relationship between the respondent’s angry response and the continuation of the legal proceedings, I would not be satisfied that the application in the notice of motion was made in the absence of reasonable grounds. I do not consider that notice of motion, which was entirely separate from the application for leave to commence proceedings for perjury, was vexatious.

Sixth proceeding

1. [42]

   The sixth proceeding involved the application for leave to appeal with respect to the dismissal of the two notices of motion constituting the fifth proceeding. In this Court, although in my reasons I expressed some concern for the formulation of the relevant finding, [26] leave was refused on the basis that it could not be said that the primary judge had misapplied the law and there was no reasonable likelihood that the Court would interfere with the order. [27]

2. [43]

   As noted above, there is a different test for refusal of leave: an issue must be more than merely reasonably arguable to warrant a grant of leave. Accordingly, refusal of leave carries with it no necessary implication that the application was vexatious.

3. [44]

   In the present case, the application did lack reasonable grounds; nevertheless, it did not constitute a serious example of vexatious proceedings.

Seventh proceeding

1. [45]

   The seventh proceeding was an application to the High Court for special leave to appeal from the judgment of this Court which constituted the sixth proceeding. As the sixth proceeding was vexatious, it follows that the application for special leave to appeal should be similarly characterised. The application was rejected on the papers, the Court concluding that the decision of this Court was “plainly correct.” [28]

2. [46]

   The application, which in effect contained the summary of argument, set out in a reasoned fashion the applicant’s submissions as to why this Court was in error. Further, it expressly addressed the requirements of s 35A of the Judiciary Act 1903 (Cth): the criteria for a grant of special leave are frequently overlooked by unrepresented applicants.

3. [47]

   The seventh proceeding was vexatious, but again not at the high end of the scale.

Eighth, ninth and tenth proceedings

1. [48]

   The last three proceedings relied upon were all concerned with an attempt by Mr Palmer to enforce costs orders made against him in favour of the respondent. The costs in question involved one certificate relating to proceedings in the District Court, and a second relating to proceedings in this Court, and an amount for the costs of the assessment. The total was $12,905. On 30 March 2017 the applicant sought a review of the certificates. Section 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that an application for review suspends the operation of the costs assessor’s determination. Nevertheless, the certificates were filed in the Local Court on 5 May 2017, resulting in a judgment of that Court against the applicant. Four days later, on 9 May 2017 the respondent served a bankruptcy notice relying on that judgment.

2. [49]

   Pursuant to Mr Mohareb’s application to set aside the judgment, orders were made on 26 May 2017 in the Local Court staying enforcement of the judgment pending the determination of the application for review of the costs certificates. Mr Mohareb considered that the order for a stay was a favourable outcome and sought costs of his motion. On the basis that he had sought to set the judgment aside, and the order made was a stay, which had not been sought, the magistrate declined to order costs.

3. [50]

   The applicant’s motion in the Local Court was not said to be vexatious, and clearly was not. The respondent’s attempt to enforce the costs certificate whilst a review was pending, contrary to the effect of the legislative suspension of the operation of the determination, was arguably an abuse of process.

4. [51]

   The actual order made in the Local Court was not before this Court. At one stage, the magistrate reserved the question of costs. Later she stated that because no stay application had been made it was not a case where costs were to follow the event in the applicant’s favour and she declined to make a costs order. The applicant was argumentative before the magistrate. Although he had not been given an opportunity to make submissions in support of his application for costs, that conduct was inappropriate, but did not involve vexatious behaviour.

5. [52]

   The eighth proceeding was an application for leave to appeal to the Supreme Court from the failure to award costs. Being a matter relating only to costs, the appeal under the Local Court Act 2007 (NSW) to the Supreme Court required leave. The leave application was refused by Adamson J. [29]

6. [53]

   Mr Mohareb did not appeal the refusal to set aside the judgment in the Local Court, perhaps because both parties in the Local Court appeared to be satisfied that a stay would meet their respective interests. Adamson J noted the respondent’s position in the following passage:

7. [54]

   Without further consideration of the true effect of the statutory suspension of the effect of the determinations on which the judgment was based, which had come into effect before the certificates of determination were registered, it is not possible to say whether either of the propositions accepted by Adamson J was either legally correct or provided a basis to leave the proceeding on foot. For present purposes, the question is whether the cost of an appeal to the Supreme Court in respect of the costs which might have been available to an unrepresented applicant for a stay of a judgment in the Local Court was entirely disproportionate to the amount in issue. However, that issue was not raised, but objectively, for reasons noted below, there were reasonable grounds for seeking leave to appeal. In my view the eighth proceeding was not vexatious.

8. [55]

   The hearing and judgment in the Common Law Division occurred on 1 November 2017. On 15 November 2017 the Federal Court dismissed the bankruptcy notice on the basis that, the assessor’s certificates being suspended, there was no debt owing at the time the notice was issued. That decision was unremarkable. Whether such an order should have been made by the Local Court, in the motion filed by the applicant in that Court, is a relevant issue.

9. [56]

   On 15 November 2017 the applicant filed a notice of motion seeking to set aside the judgment delivered by Adamson J in the eighth proceeding. The motion constituted the ninth proceeding relied upon as vexatious.

10. [57]

    The notice of motion was heard by Lonergan J in the Common Law Division and dismissed on 3 April 2018. [30] In the “particulars” provided by the applicant reliance was placed on the judgment of the Federal Court and the reasons given for setting aside the bankruptcy notice, namely that there was no debt owing. The particular continued: [31]

11. [58]

    That may be understood as an appeal from the stay order, on the basis that there was no valid judgment to stay; that is, the judgment should have been set aside, as proposed in Mr Mohareb’s notice of motion. That this was intended was recorded by Lonergan J in the following statement:

12. [59]

    The dismissal of the motion was based on the proposition that Mr Mohareb’s reliance on Uniform Civil Procedure Rules 2005 (NSW), r 36.16 was “misconceived.” [32] That was because, Adamson J having determined a claim for relief and dismissed the whole proceedings, reopening was precluded by r 36.16(3). Disregarding how the case may have been presented, that conclusion was not correct. Rule 36.16(1) provides that the court may set aside or vary a judgment or order “if notice of motion for the setting aside or variation is filed before entry of the judgment or order.” Rule 36.16(3A) permits the court to exercise the power under subr (1) although the order has been entered, if a notice of motion for setting aside the order has been made within 14 days after entry. That appeared to have occurred, so that the Court at least had power pursuant to r 36.16(1) to reopen and vary orders made by it, although they finally determined the proceedings.

13. [60]

    The ninth proceeding, objectively assessed, did not lack reasonable grounds.

14. [61]

    The tenth proceeding involved an application for leave to appeal from the judgment of Lonergan J. Mr Mohareb’s application for leave to appeal was unsuccessful, but this Court accepted the reasoning set out above for concluding that Lonergan J had erred in holding there was no power to intervene. This Court concluded that if leave to appeal were granted, “it would therefore hold that Lonergan J erred and that it was incumbent on this Court to exercise the discretion that her Honour did not appreciate that she had.” [33]

15. [62]

    Leave was refused on the basis that there would, however, be no reason to set aside the judgment of Adamson J, although Lonergan J had understood the challenge to be based on the view upheld in the Federal Court that there was no debt (and therefore the Local Court judgment was without foundation). It is not necessary to address the reasoning why this court refused leave: it is sufficient to note that there was a substantial basis for the application for leave to appeal from the judgment of Lonergan J: the tenth proceeding cannot be said to have been vexatious.

Notice of motion – affidavit in support of application for vexatious proceedings order

1. [63]

   The present proceedings brought by Mr Palmer were commenced on 16 July 2018. They were supported by an affidavit of that date. On 21 September 2018 Mr Mohareb filed a notice of motion seeking leave to prosecute Mr Palmer for perjury identified by reference to particular paragraphs of his affidavit of 15 August 2018. The judge described the motion as “inherently intimidatory”. [34] That characterisation was undoubtedly justified. As it turned out, the judge excluded as irrelevant critical paragraphs the subject of Mr Mohareb’s motion. Other paragraphs which were challenged used evaluative terms which involved “elements of opinion and matters of degree”, which were not capable of readily been identified as knowingly false. Such allegations were also vexatious in the sense of being groundless, as the judge held. [35]

2. [64]

   The amended notice of motion filed on 12 April 2019 was entirely misconceived. It sought to reagitate many of the unsuccessful applications and claims which the applicant had raised in the earlier proceedings. It appears to have been inspired by the allegations in relation to those matters set out in the respondent’s affidavit. The motion was properly dismissed. Indeed, for the most part, the orders sought could not have been granted by way of motion in the proceedings commenced by Mr Palmer. The question is to what extent the primary judge was entitled to, and did, rely upon the notice of motion in support of the vexatious proceedings order.

3. [65]

   A person’s lies in defending proceedings may be used in support of the claim brought against the person, as demonstrating awareness of the weakness or absence of a true defence. However, there is a difficulty in treating the conduct of the defence as another matter forming the subject of the claim. [36] Thus in disciplinary proceedings, as explained in Smith v New South Wales Bar Association, [37] a finding adverse to the defendant, based on his evidence in defending the proceedings, should not be taken into account as another instance of improper conduct, unless he was given an opportunity to address the possible adverse finding on that basis. A finding that the applicant had acted vexatiously in the course of defending proceedings brought against him under the Vexatious Proceedings Act should not constitute part of the basis for an order under the Act, unless the possibility of such a finding had been identified, either in the course of the hearing, or at least before the order was made. Mr Palmer’s statement of particulars on which the proceedings were based, did not include Mr Mohareb’s defence of the proceedings.

4. [66]

   In dismissing a paragraph in the notice of motion which sought a finding of bias on the part of Gibson DCJ, the following exchange took place: [38]

5. [67]

   The closest the Court came to ensuring that Mr Mohareb was on notice of the possible inference of vexatious conduct drawn from his conduct in the course of the proceeding also occurred in dealing with his notice of motion: [39]

6. [68]

   It is quite doubtful that this passage was sufficient to put the applicant on notice that his conduct in filing the notice of motion would be treated, in determining whether a vexatious proceedings order should be made, as an additional particular of commencing proceedings without reasonable grounds.

7. [69]

   The trial judge then put to the applicant that to seek to prosecute his opponent for perjury on affidavits sworn in the case appeared to be intimidatory. Mr Mohareb stated that Mr Palmer “didn’t take it this way” and “didn’t feel intimated by it.” [40] The exchange continued:

8. [70]

   The notice of motion was undoubtedly misconceived; however, Mr Palmer did not seek to have it struck out, nor did he respond to it. At the first hearing of the matter, aborted after Mr Palmer was briefly cross-examined, to allow him to particularise his grounds, no objection was taken to the form of Mr Mohareb’s notice of motion. Indeed, he was given leave to amend it, which he did.

9. [71]

   The point that the applicant appeared to be making at the hearing before the primary judge was that in order to resist a finding that the particularised proceedings were vexatious under any or all of the paragraphs of s 6 of the Vexatious Proceedings Act, the applicant was entitled to have the court reconsider each proceeding to determine if it had been instituted to harass or annoy or for another wrongful purpose, or without reasonable ground, or that it had been conducted to achieve a wrongful purpose in a way that harasses or causes unreasonable annoyance, regardless of subjective intention or motive. As the judge noted, Mr Palmer relied upon all four paragraphs of s 6. [41] In that sense, the applicant’s intention in saying that the respondent had reopened issues which were closed by the finality of a court judgment is tolerably clear.

10. [72]

    Mr Palmer had been directed by Wright J at a hearing on 28 February 2019 to particularise which paragraphs of s 6 applied with respect to each proceeding claimed to be vexatious. Except for the first proceeding, which was said to have been conducted so as to force Mr Palmer to settle the matter, relying on s 6(d) of the Vexatious Proceedings Act, all proceedings were said to be vexatious pursuant to all four paragraphs of s 6. [42] (The terms of the settlement did not constitute part of the vexatious proceedings finding made by the primary judge.)

11. [73]

    Although the notice of motion was misconceived, it is not clear that the primary judge relied upon it as a basis for his conclusion that the applicant “frequently instituted or conducted” vexatious proceedings. [43] As that course would need to have been expressly justified and notice given, absent amendment to the statement of particulars, the better view is that it was not relied upon. It should now be disregarded.

Assessment of “frequently”

1. [74]

   As noted above, the power of the court to make a vexatious proceedings order is only engaged where the court is satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. It is uncontentious that the term “frequently” involves a degree of imprecision, or flexibility, satisfaction as to which will depend on the litigious context. [44] The assessment of frequency involves a number of disparate factors.

2. [75]

   There are two objective parameters, namely the number of proceedings found to be vexatious and the period over which the proceedings were instituted or conducted. A third matter is the subject matter of the vexatious proceedings. In some cases it may involve proceedings against a range of other parties and raising a range of issues. The present case involves a set of proceedings involving one opponent, Mr Palmer, all arising from one original subject, namely the posting of the allegedly defamatory poster. The subsequent events were derivative from the original defamation proceeding.

3. [76]

   A fourth consideration is the proportion of proceedings found to be vexatious. There may be a spectrum from a handful of vexatious applications in the course of lengthy litigation, at one end, to a plethora of vexatious applications in support of a series of groundless claims, at the other. It will be necessary to return to this aspect in relation to the present case.

4. [77]

   A fifth consideration involves the evaluation of the underlying merits of the claims by the person instituting proceedings. Thus, a litigant in person may have a legitimate grievance which is pursued through a number of missteps. In the present case, that was true of the litigation with respect to the costs orders.

5. [78]

   A further related consideration is the identity of the party responsible for initiating particular steps. Thus, the proceedings with respect to the costs order were initiated by Mr Palmer, not Mr Mohareb.

6. [79]

   On the reasoning set out above, the number of vexatious proceedings (three) did not engage the description of proceedings frequently instituted. However, in my view, even had there been five such proceedings the frequency criterion would not have been met, having regard to the proportion of proceedings found to be vexatious. The following is a table of the relevant proceedings between the applicant and the respondent:

7. [80]

   This history of the proceedings reveals that there were a number of steps taken which were not found to be vexatious, including the commencement of the defamation proceedings and the appeal in the Court of Appeal from proceeding (5). Proceedings (11)-(16) all responded to steps initiated by Mr Palmer. The last proceeding was found to be a vexatious motion in the present proceedings, but it is not clear that reliance was placed upon that in making the order.

8. [81]

   The proceedings covered a period of four years from August 2014 to July 2018. The initial claim by the applicant is not on the list of vexatious proceedings: every proceeding found to be vexatious was an interlocutory motion or an appeal from an unsuccessful interlocutory motion. That there were (on the view taken in this Court) five such vexatious proceedings out of 16 proceedings (not including those commenced by the respondent) over a period of four years does not, in my view, demonstrate that the applicant had frequently instituted groundless proceedings. It follows that, on my view that only three of the proceedings were without reasonable grounds, the power of the Court to make a vexatious proceedings order cannot have been engaged.

(a) order with respect to the respondent

1. [82]

   In his amended summons in the Common Law Division, the respondent claimed relief in the following terms:

2. [83]

   The primary judge made an order similar in terms to that sought in proposed order (1), but did not make the proposed stay of current proceedings, possibly because there were none. He awarded costs on an indemnity basis against the applicant, assessed in the lump sum of $19,000.22.

3. [84]

   Those orders depended upon satisfaction that the applicant had “frequently instituted or conducted” vexatious proceedings within the terms of s 8(1)(a) of the Vexatious Proceedings Act. Having concluded that all of the 10 proceedings, other than one aspect of the fifth proceeding, had been vexatious proceedings, he was accordingly satisfied as to the frequency requirement. He said he would have been so satisfied even if only the seven proceedings pursuant since Schmidt J dismissed the Attorney General’s application in December 2016 were to be considered.

4. [85]

   The findings made above are that only part of the fifth proceeding and proceedings six and seven were vexatious. They do not justify a finding of frequent institution of vexatious proceedings. Further, two, being applications for leave to appeal, were themselves briefly disposed of and should be treated as at the lower end of the scale of seriousness of such conduct.

5. [86]

   Even if the criteria of engagement of the power to make a vexatious proceeding order were satisfied, the Court’s power is discretionary. Where proceedings require leave of this Court for their commencement, there is a largely marginal benefit in requiring a further stage of leave under the Vexatious Proceedings Act. Where proceedings are to be instituted in other courts, it is to be borne in mind that the leave application must be made in the Common Law Division of this Court, which adds an additional layer of procedural complexity to proceedings which might more readily and cheaply be disposed of in, say, a Local Court or tribunal. The discretion must be exercised with caution at the behest of a single opponent who has himself instituted at least one of the proceedings, which led to four consequential applications.

6. [87]

   In my view, on the findings set out above, order (1) should be set aside. It follows that the costs order must also be set aside.

(b) vexatious proceedings order – third parties

1. [88]

   Order (2) made by the primary judge prohibited the applicant from “instituting any new proceeding against any person in New South Wales”. The order was unlimited as to time, circumstances or parties. Such orders should only be made where circumstances clearly demand such an order. Although it was not expressly challenged by the applicant, it would be anomalous to leave the order on foot when order (1) is set aside. Order (2) had not been sought in the respondent’s amended summons in the Common Law Division. Indeed, in the course of the submissions before the primary judge Mr Mohareb described an attack upon him December 2017, which led to the following exchange: [45]

2. [89]

   Making an order in terms not foreshadowed during or after the hearing is a breach of procedural fairness. Following the completion of Mr Mohareb’s submissions, the judge stated that he did not need to hear from Mr Palmer and reserved his decision. [46]

3. [90]

   In these circumstances, it was not appropriate to make an order in the blanket terms of order (2), prohibiting the applicant from bringing proceedings against any person in New South Wales. This Court has commented before on the degree of restraint which is required in any case where such an order is made. Order (2) should be set aside.

Costs

1. [91]

   The applicant has been successful in resisting the orders sought by Mr Palmer under the Vexatious Proceedings Act. He should not have to pay Mr Palmer’s costs of the proceedings in the Common Law Division, but should have his costs as an unrepresented litigant, limited to expenses actually incurred in the course of those proceedings.

2. [92]

   The question of costs in this Court is more difficult. Mr Palmer did not seek to resist the appeal. Rather, the defence of the orders below was undertaken by the Attorney. The circumstances in which the Attorney effectively took over the defence of the proceedings are set out in an affidavit of Ms Kiri Mattes affirmed on 24 February 2020. There is no reference to any discussion as to liability for costs. However, on the basis that the Attorney was the active contradictor, in his written submissions of the same date, he sought an order for costs. It must follow that he will accept liability for the costs given the outcome of the proceedings. Those costs should be awarded on the basis of an unrepresented litigant, namely expenses incurred by Mr Mohareb in commencing and pursuing the proceedings in this Court.

Orders

1. [93]

   I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal from the judgments and orders made in the Common Law Division on 7 August 2019 and 2 September 2019.

   2. (2)

      Set aside orders (1) and (2) made in the Common Law Division on 7 August 2019 and orders (1) and (2) made on 2 September 2019.

   3. (3)

      Order that Mr Palmer pay Mr Mohareb’s expenses as an unrepresented litigant of the proceedings in matter 2018/217228 in the Common Law Division.

   4. (4)

      Order that the Attorney General for the State of New South Wales pay the applicant’s expenses as an unrepresented litigant of the proceedings in this Court.

   5. (5)

      Direct that the applicant within 14 days advise:

2. [94]

   McCALLUM JA: I agree with Simpson AJA.

3. [95]

   SIMPSON AJA: The Vexatious Proceedings Act 2008 (NSW) (“the VP Act”) makes provision with respect to vexatious proceedings in the courts and tribunals of NSW. Section 8(1) provides that an authorised court (of which the Supreme Court is one) may make a “vexatious proceedings order” in relation to a person if satisfied that:

4. [96]

   By subs (4) of s 8 an order may be made on the court’s own motion, on the application of the Attorney-General, the Solicitor General, a court registrar, a person against or in relation to whom another person has instituted or conducted vexatious proceedings, or (with the leave of the authorised court) by a person who, in the opinion of the court, has a sufficient interest in the matter.

5. [97]

   “Proceedings” is defined, broadly, in s 4, to include (inter alia) proceedings within the jurisdiction of any court or tribunal, proceedings incidental to such proceedings, interlocutory proceedings or applications and appeals and applications for leave to appeal against a decision of a court or tribunal.

6. [98]

   “Vexatious proceedings” is defined, inclusively, in s 6, as:

7. [99]

   By s 8(3) a vexatious proceedings order must not be made unless the person in respect of whom the order is sought has been heard or has been given the opportunity to be heard.

8. [100]

   By s 8(7) the orders that may be made are:

9. [101]

   By s 14(2) a person subject to a vexatious proceedings order in terms of s 8(7)(b) may apply to the appropriate authorised court for leave to institute proceedings the institution of which would otherwise be prohibited. The balance of s 14 imposes conditions on the making of such an application. Sections 15 and 16 respectively state circumstances in which the authorised court must dismiss the application or may grant leave. Section 16 imposes significant constraints on the leave that may be granted.

The application for a vexatious proceedings order

1. [102]

   By amended summons filed in the Supreme Court on 15 August 2018 the respondent, Mr Matthew Palmer, sought:

2. [103]

   In written submissions Mr Palmer contended that each of the eleven proceedings commenced against him by Mr Mohareb that he there identified was vexatious within each of pars (a)-(d) of s 6 of the VP Act.

3. [104]

   On 7 August 2019 Fagan J (“the primary judge”), made the following orders:

4. [105]

   It will be seen that Order 2 is wider than the orders sought by Mr Palmer in that it extends to proceedings instituted (or to be instituted) by Mr Mohareb against “any person”, other than any “interlocutory process” in already commenced proceedings, or appeals or applications for leave to appeal in respect thereto. The orders sought by Mr Palmer were confined to proceedings instituted by Mr Mohareb against him.

5. [106]

   On 2 September 2019, the primary judge ordered Mr Mohareb to pay Mr Palmer’s costs, which he assessed (on the indemnity basis) in the gross sum of $19,000.00: Palmer v Mohareb, (Supreme Court (NSW), Fagan J, 2 September 2019, unrep (no medium neutral citation).

6. [107]

   The primary judge found that ten of the eleven proceedings identified by Mr Palmer that were commenced by Mr Mohareb against Mr Palmer, or against Mr Palmer and his wife, Mrs Annette Palmer, between 29 May 2015 and 2 July 2018 were vexatious within the meaning of s 6(c) of the VP Act, that is, were instituted or pursued without reasonable ground. His Honour did not make findings with respect to any of the other paragraphs of s 6. He found (at [150]) that the ten proceedings were sufficient to satisfy the requirement of frequency in s 8(1). He had regard to litigation commenced by Mr Mohareb against individuals other than the Palmers. He considered (at [152]) that:

The proceeding in this Court

1. [108]

   By summons filed on 14 October 2019 Mr Mohareb seeks leave to appeal against the orders of 7 August 2019 and 2 September 2019. Pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) leave is required to appeal against the 7 August orders because the “matter at issue” in the proceedings is not of the value of $100,000 or more: Potier v Attorney-General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [47]. Leave is required to appeal against the September orders because they relate to costs: s 101(2)(c) and (q). The President has directed that the application for leave and (if leave is granted) the appeal be heard concurrently.

2. [109]

   On 13 December 2019 the Registrar of the Court of Appeal made orders, by consent, joining the Attorney-General of NSW to the proceeding as second respondent. The Attorney-General has filed written submissions in support of the orders made. The first respondent, Mr Palmer, has not participated in the application, which was listed for hearing on 5 March 2020. On 4 March he communicated by email with the Court, indicating that he had not filed an appearance or submissions, that he did not intend to appear, that he intended “to act as a silent respondent”, and that he had received and read the submissions of the Attorney-General.

3. [110]

   The precise role the Attorney-General sought to play as a respondent to the proceedings was not immediately apparent. He was joined on his own application. Affidavit evidence was produced that showed that the Attorney-General is party to other, unrelated, proceedings instituted by Mr Mohareb. The interest of the Attorney-General is to uphold the orders made, particularly Order 2, which precludes the institution of any new proceedings against “any person”. The Attorney-General has indicated that, as “the active contradictor” (and if successful), he will seek the costs of the appeal. The question for present determination is whether the primary judge was in error in finding that any (or all) of the ten proceedings was (or were) vexatious within s 6(c) of the VP Act, as having been instituted without reasonable ground.

4. [111]

   It has not been suggested on behalf of the Attorney-General (or Mr Palmer) that, if any of those findings was erroneous, this Court should consider whether the proceeding in question was vexatious within the meaning of any of pars 6(a), (b) or (d).

The proposed appeal

1. [112]

   Mr Mohareb has identified six proposed grounds of appeal, pleaded as follows:

2. [113]

   Mr Mohareb has directed no submissions to grounds 2 – 6. In grounds 2, 3 and 4 Mr Mohareb asserts denial of procedural fairness in a number of ways, but he has not supported these grounds by reference to any evidence. Nor is it possible to make a determination with respect to ground 5, an assertion of actual bias in the primary judge. Mr Mohareb has directed lengthy and detailed submissions to ground 1. He has not directed any submissions to the issue of costs.

3. [114]

   As will become apparent I have come to the view that error has been identified in the primary judgment sufficient to warrant a grant of leave to appeal.

4. [115]

   Before embarking on a consideration of the grounds of appeal it is appropriate to state some relevant legislative history and some applicable principles.

5. [116]

   Access to courts for redress of actual or perceived wrongs and for adjudication of claims is a basic right in a democratic society: R De W Kennedy (Finance) Pty Ltd v Ley; Ley v Scarff (Supreme Court (NSW), Holland J, 29 March 1978, unrep), quoted in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 484. It is also to the benefit of citizenry generally because it provides a civilised and enforceable means of settlement of disputes. Restriction of access to courts is an extreme interference with those rights: Wentworth at 484; Soden v Kowalski [2011] FCA 318 per Stone J at [35] and in the Full Court: Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159 at [58].

6. [117]

   There are, however, those who avail themselves of access to the court in a way that amounts to abuse, misuse or unfair exploitation, significantly to the detriment of those whom they pursue, and the system of justice itself.

7. [118]

   The Supreme Court has long been possessed of a power to rein in excessive and vexatious use of its processes. Until 2008 that power was to be found in s 84 of the Supreme Court Act, the language of which was cumbersome and arcane. The text of s 84(1) can be found in the report of Wentworth. It provided a remedy where a person, called a “vexatious litigant”:

8. [119]

   Since 2008 the power has been found in the VP Act. Introducing the Vexatious Proceedings Bill in the Legislative Council on 28 October 2008 the Honourable Henry Tsang, on behalf of the Attorney-General, said:

9. [120]

   There can be no clearer statement that the new provisions were intended to facilitate the restraint of those who fall into the category of vexatious litigants. Nevertheless the VP Act also recognises the importance of access to justice through the established court system. Mr Tsang went on to say:

10. [121]

    In Kowalski, speaking of analogous provisions in the Federal Court of Australia Rules 1976 (Cth), Stone J said:

11. [122]

    Where a vexatious proceedings order is contemplated, the competing interests of access to justice and preservation of the integrity of the system for the benefit of the majority require a balance to be struck. The provisions of the VP Act are designed to spell out, in some detail, the circumstances in which a vexatious proceedings order may be made. “Proceedings” is defined in the widest possible terms to encompass virtually all steps that may be taken by a litigant. As has been commented above, “vexatious proceedings” is defined, non-exhaustively, in a way that encompasses a number of proceedings and the manner in which they are conducted.

Rehearing under s 75A of the Supreme Court Act

1. [123]

   As noted at the outset of these reasons, Mr Palmer relied on each of the four paragraphs of s 6 of the VP Act to establish the vexatiousness of each of the ten proceedings. The primary judge made findings only with respect to par (c), that the proceedings were instituted or pursued without reasonable ground. He did not consider, and did not make findings, with respect to the manner in which Mr Mohareb conducted the proceedings (par (d)), or any wrongful or improper motive Mr Mohareb may have had in instituting or pursuing them (par (b)). Mr Palmer did not attempt to support the orders by reference to any other basis of vexatiousness. The Attorney-General also did not seek to invoke any other paragraph of s 6, contenting himself with supporting the reasoning of the primary judge. In those circumstances the enquiry by this Court should be confined to whether any of the ten proceedings in issue was shown to have been instituted or pursued without reasonable ground.

2. [124]

   By s 75A of the Supreme Court Act 1970 (NSW) an appeal (if leave is granted) is by way of rehearing and, by subs(6), this Court has the powers and duties of the court of first instance, including as to the drawing of inferences and makings of findings of fact.

3. [125]

   A constraint is placed, by reason of the decisions of the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Robinson Helicopters Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679, on interference with findings of fact made by the court of first instance. Findings of fact may not be disturbed unless they are shown to be contrary to “incontrovertible facts or uncontested testimony”, or are “glaringly improbable” or “contrary to compelling inferences”. The conclusions here in question are not as to findings of fact, which may be dependent on the assessment of witness credibility. What is in issue here is the evaluation of the merits of the various proceedings commenced by Mr Mohareb against Mr Palmer. Fox v Percy and Robinson Helicopters do not constrain the capacity of this Court to make its own evaluations: see Lee v Lee; HSU v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2019] HCA 28.

4. [126]

   Curiously enough, no simple test for determining whether a proceeding has been instituted without reasonable ground appears to have emerged. A number of statements have identified the pursuit of claims that have previously been determined adversely to the litigant as examples of proceedings instituted or pursued without reasonable ground: Kowalski; and, on appeal, Kowalski v Mitsubishi Motors Australia Ltd; Attorney-General of New South Wales v Croker [2010] NSWSC 942 at [17]; Singh v The Owners Strata Plan 11723 [2013] NSWSC 1595. Otherwise it has been suggested that proceedings that are “manifestly hopeless” or “devoid of merit” will fall within that category: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6]. Proceedings that have no reasonable prospects of success come within that category.

Factual Background

1. [127]

   Mr Mohareb has been a frequent and generally (but not entirely) unsuccessful litigant in the District Court of NSW and in this Court. For the most part (although not always) he has not had legal representation.

2. [128]

   All the proceedings involved in this appeal arise out of an ongoing dispute between Mr Mohareb and Mr Palmer and Mrs Palmer. Mr Mohareb and the Palmers were once neighbours who lived on Scotland Island off the northern beaches of Sydney.

3. [129]

   On 19 August 2014, by statement of claim filed in the District Court, Mr Mohareb commenced a proceeding alleging that, on or around 21 July 2014, Mr Palmer and Mrs Palmer had published material that defamed Mr Mohareb on a Facebook page maintained by the Scotland Island Community. On 7 November 2014 Mr Mohareb filed an amended statement of claim (in which he added other causes of action).

4. [130]

   On 5 March 2015 the proceeding was resolved by a “Deed of Agreement and Understanding” (“the Deed”) which required the Palmers:

5. [131]

   The Deed did not bring the litigation to an end. On 31 March 2015, Mr Palmer posted an apology on the Scotland Island Community Facebook page. The post was removed by Facebook moderators who interpreted it as “having a dig at another person”. On 1 April 2015, Mr Palmer reposted the apology, which was again removed, with threats that he would be banned from the page if he attempted a third time to post it. Eventually the apology was restored but it was, shortly after, again removed. Mr Mohareb declined to discontinue the principal proceedings.

6. [132]

   By notice of motion filed on 19 May 2015 the Palmers, relying on s 73 of the Civil Procedure Act 2005 (NSW), sought, inter alia, a declaration to the effect that the principal proceeding (the defamation proceeding brought by Mr Mohareb) had been compromised or settled on the terms stated in the Deed, orders giving effect to the settlement, including that the proceeding be dismissed, with costs to be assessed on an indemnity basis (“the s 73 proceeding”). In support of the application, on 23 April 2015, Mr Palmer swore an affidavit in which he deposed, inter alia, to his efforts to publish on the Scotland Island Community Facebook page the apology required by the Deed and the responses of the administrators of the Facebook page.

7. [133]

   On 30 July 2015 Gibson DCJ dismissed the s 73 proceeding, and, (purportedly) exercising the power conferred by s 61 of that Act, dismissed Mr Mohareb’s statement of claim: Mohareb v Palmer (No 2) [2015] NSWDC 141. Her Honour also made other orders to which reference will be made below.

8. [134]

   This was the genesis of the litigation saga that followed. Below is an account of the ten proceedings found by the primary judge to have been vexatious. First, it is necessary to refer to another attempt to have Mr Mohareb made subject to orders under the VP Act.

9. [135]

   Mr Palmer’s summons was not the first attempt to have orders under the VP Act made against Mr Mohareb. In May 2016 the Attorney-General commenced proceedings of a similar nature, citing proceedings instituted by Mr Mohareb in the Queensland Supreme Court, in the NSW Supreme Court against a Mr and Ms Jankulovski, and in the NSW District Court against a number of named persons and private companies. All these are unrelated to the present proceedings. The Attorney-General, in each case, relied on the definition of “vexatious proceedings” in s 6(d) of the VP Act (which was then in a different form and defined “vexatious proceedings” as “proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose”). The Attorney-General did not invoke the definition in any other paragraph of s 6.

10. [136]

    Included in the proceedings on which the Attorney-General relied were four proceedings instituted by Mr Mohareb against Mr Palmer. Two were applications under s 338(1) of the Crimes Act 1900 (NSW) for leave to prosecute Mr Palmer for perjury, each of which was dismissed by Gibson DCJ. One was an application for leave to appeal against the first of those dismissals. The fourth was an application under s 203 of the District Court Act 1973 (NSW) that Mr Palmer be referred to the Supreme Court for determination of an allegation of contempt of court. Since each of these proceedings also features in Mr Palmer’s application, all will be dealt with in more detail below.

11. [137]

    Schmidt J did not accept the Attorney-General’s contention. Rather, her Honour considered that Mr Mohareb was, as he was entitled to do, exercising his “undoubted legal rights”. On 16 December 2016 her Honour dismissed the summons: The Attorney-General for the State of New South Wales v Mohareb [2016] NSWSC 1823. It is unnecessary to examine her Honour’s reasons so far as they relate to any of the named parties other than the Palmers.

12. [138]

    As is plain from the above, Schmidt J’s conclusions were arrived at in the context of an application limited to an assertion that the proceedings were vexatious as contemplated by s 6(d) of the VP Act. There is in the judgment of Schmidt J no finding of fact that any of the proceedings brought by Mr Mohareb against Mr Palmer was (or was not) vexatious as contemplated by s 6(c). In any event, Mr Palmer was not party to the proceedings brought by the Attorney-General and is not bound by the findings made by Schmidt J. He was not precluded from bringing separate proceedings in his own name.

The proceedings found by the primary judge to be vexatious

1. [139]

   The first to fourth proceedings are related. They involve attempts by Mr Mohareb to prosecute Mr Palmer for what he alleged to be perjured evidence contained in an affidavit filed by Mr Palmer in the s 73 proceeding, in which he deposed that he had twice (on 31 March and 1 April 2015) posted the apology required by the Deed on the Scotland Island Facebook page, and that it had been removed by the Facebook page administrators, with a warning that if he attempted to post it again he would be banned from the page. Screenshots of Facebook correspondence between Mr Palmer and the administrators confirmed that account. However, that evidence also shows that, at 8.48 am on 2 April 2015, having received an explanation from Mr Palmer about the circumstances in which he posted the apology, the administrators agreed to reinstate the apology, and did so by 10.36 am. It was removed shortly after, not by the administrators. Gibson DCJ observed that:

2. [140]

   Mr Mohareb took the view that, in failing to mention the agreement of the administrators on 2 April to reinstate the apology, and their having done so, Mr Palmer’s affidavit at least created a misleading impression, sufficient to amount to perjury.

3. [141]

   Accordingly, on 29 May 2015 Mr Mohareb filed a notice of motion in which he sought leave, pursuant to s 338(1)(c) of the Crimes Act, to prosecute Mr Palmer for perjury. By s 327 of the Crimes Act, any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury.

4. [142]

   Section 338(1) of the Crimes Act is in the following terms:

5. [143]

   The notice of motion was heard by Gibson DCJ on 5 June 2015 (with other applications). In the same judgment (30 July 2015) in which she dismissed Mr Palmer’s s 73 proceeding and Mr Mohareb’s defamation proceeding, Gibson DCJ also ordered that Mr Mohareb’s notice of motion seeking leave to prosecute Mr Palmer for perjury be dismissed and that Mr Mohareb pay Mr Palmer’s costs of his notice of motion to be assessed on an indemnity basis. Her Honour dismissed competing applications for special costs orders: Mohareb v Palmer (No.2) [2015] NSWDC 141.

6. [144]

   Neither Mr Mohareb’s notice of motion nor any affidavit in support is in the materials provided to this Court. Gibson DCJ quoted Mr Mohareb as identifying, in an affidavit, “the precise acts of perjury” as:

7. [145]

   She went on to say:

8. [146]

   At the end of the argument (when it must have been apparent to Mr Mohareb that the judge considered that he had not adequately specified the false statements on which he relied) Mr Mohareb asked for time to present the application “in a more acceptable form”. Gibson DCJ declined to allow more time.

9. [147]

   During the course of the proceedings Gibson DCJ expressed, strongly, her personal view that was adverse to the procedure provided for by s 338. She considered that it was inappropriate for litigants to seek leave to commence private prosecutions for perjury. She stated her intention to convey her view to the Attorney-General.

10. [148]

    Mr Mohareb’s notice of motion seeking leave to prosecute Mr Palmer for perjury is the first of the ten proceedings the primary judge held to be vexatious as having been instituted without reasonable ground. His Honour recorded in some detail the sequence of events leading up to the hearing of 5 June 2015.

11. [149]

    The primary judge’s ultimate findings were set out in [55]–[58] of the primary judgment, as follows:

12. [150]

    On 21 August 2015 Mr Mohareb sought leave to appeal to this Court against the order dismissing his notice of motion. The application was heard on 24 November 2015. Mr Mohareb was represented by counsel. On 27 November leave was refused: Mohareb v Palmer [2015] NSWCA 369.

13. [151]

    Meagher JA and Bergin CJ in Eq held that Gibson DCJ was correct in dismissing the application in the absence of clear identification of the perjury charge Mr Mohareb sought to bring, and in holding that Mr Palmer’s evidence about his attempts to post the apology was not a false statement. The application for leave to appeal is the second proceeding found by the primary judge to have been vexatious within s 6(c).

14. [152]

    The relevant findings and conclusions in respect of this proceeding are contained in [60]–[61] of the primary judgment as follows:

15. [153]

    Three weeks later, on 15 December 2015, Mr Mohareb filed a notice of motion in the District Court again seeking leave under s 338(1)(c) of the Crimes Act to prosecute Mr Palmer for perjury. He particularised what he alleged to have been false statements in the affidavit sworn by Mr Palmer on 23 April 2015 in support of the s 73 proceeding. He said:

16. [154]

    In this application Mr Mohareb was represented by counsel.

17. [155]

    On 4 March 2016 Gibson DCJ dismissed the notice of motion with costs to be assessed on an indemnity basis: Mohareb v Palmer (No.3) [2016] NSWDC 38.

18. [156]

    Her Honour saw “difficulties” in the way of Mr Mohareb establishing that any omission in the affidavit should be treated as perjury. One such difficulty was that Mr Palmer’s affidavit had been prepared by his legal advisors, and that his instructions to them had been to set out the entirety of the relevant conversations and dealings (at [29]). A second difficulty her Honour perceived concerned the materiality of the allegedly false statement (false by omission of a relevant circumstance). Her Honour did not accept that the statement was material to the outcome (at [31]). (This appears to have been a reference to the outcome of the proceeding in which the affidavit was filed, that is, Mr Palmer’s s 73 proceeding.) Her Honour said:

19. [157]

    This is the third proceeding held by the primary judge to have been vexatious within s 6(c) of the VP Act. He noted at [75] that Gibson DCJ had referred to s 338(1)(c) as providing for a procedure:

20. [158]

    The primary judge considered that the proposed charge of perjury was “misconceived in law” because, while the offence requires proof that something said or written by the accused was false, what was written in the affidavit was in fact true. His Honour also considered that the discretionary factors to which he had earlier referred (at [55]–[57] extracted above at [149]) in relation to the first s 338(1)(c) application would have presented “an insuperable obstacle” to the second s 338(1)(c) application (at [71]). He added:

21. [159]

    Mr Mohareb sought and was granted leave to appeal against the orders of 4 March 2016 (see [155] above). The appeal was dismissed with costs: Mohareb v Palmer [2016] NSWCA 378. This Court (Beazley P, Meagher and Leeming JJA) rejected the proposition that perjury could be committed by conduct or by silence (at [44]), and held that Mr Mohareb’s particulars failed to show that Mr Palmer had made a false statement on oath (at [45]).

22. [160]

    The leave application was the fourth proceeding held by the primary judge to have been vexatious. He held (notwithstanding that leave had been granted) that both the leave application and the appeal had been instituted and pursued without reasonable ground. (The appeal was not included in the list of proceedings identified by Mr Palmer as vexatious).

23. [161]

    The relevant findings are contained in [78]–[79], [81]-[85]:

24. [162]

    It seems to me to be clear that, in each s 338(1)(c) application, Mr Mohareb sought to make the same case – that, in omitting reference to the 2 April communications from the Facebook administrators, Mr Palmer deliberately sought to mislead the court, and that this amounted to perjury. Unsurprisingly, given the unstructured manner in which Mr Mohareb propounded his case on the first application, Gibson DCJ did not initially so understand it. By the time he made his second application Mr Mohareb rectified the lack of clarity, and Gibson DCJ dealt with it on that basis.

25. [163]

    The fact remains that each application was based on the same proposition – that, by omission of relevant evidence, Mr Palmer committed perjury.

26. [164]

    That raised what appears to have been a novel, or, at least, previously undecided, question: whether perjury can be committed by silence, or by representation. It was held, by this Court, to be a contention worthy of a grant of leave. It was only after consideration by a bench of three judges of this Court that the question was determined.

27. [165]

    Determination of whether Mr Mohareb had reasonable ground for making an application under s 338(1)(c) does not depend on the manner in which he articulated the application; nor does it depend upon the discretionary factors the primary judge saw as contra-indicating a grant of leave to pursue the proposed prosecution. That Mr Mohareb lacked “the legal understanding or skill to be able to plead a charge of perjury” does not bear upon whether or not there is a reasonable ground for the proceeding. The observations in [60] of the primary judgment were irrelevant to the issue raised by s 6(c).

28. [166]

    The fundamental fact on which Mr Mohareb sought to rely to establish perjury was that Mr Palmer omitted from his affidavit certain relevant communications that Mr Mohareb contended would, if produced, have cast a different light on the assertions Mr Palmer made. That those communications were omitted was incontrovertible. What was in issue (in both s 338(1)(c) applications, although not clearly articulated in the first) was whether such an omission could constitute perjury. Once it emerged that that was the case Mr Mohareb sought to propound, this court saw fit to grant leave for it to be argued. That the proposition was ultimately rejected does not mean that the proceeding based on it was made without reasonable ground. And that it was not clearly articulated on the first application is also not necessarily indicative of the absence of a reasonable ground: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [23], citing the reasoning of Lindgren J in White Industries Australia Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 309; [2007] FCA 511 at [47].

29. [167]

    In my opinion, once it is understood that each s 338(1)(c) application was founded on the same proposition, the grant of leave to appeal against the dismissal of the second strongly contradicts the proposition that that application was made without reasonable ground. It must follow that, despite the lack of clarity in its articulation, the first was also not made without reasonable ground. The grant of leave also contradicts any proposition that the second application for leave to appeal, and the appeal itself, were made without reasonable ground. I would reject the proposition that the grant of leave was induced by inadequate representation of Mr Palmer in this Court, and that this bears upon whether there was reasonable ground for the proceeding.

30. [168]

    I would therefore find that none of the first, third and fourth proceedings was made without reasonable ground. It does not necessarily follow from that that the second proceeding found to have been vexatious (the first application for leave to appeal) was made on reasonable ground. In this respect it is of some significance that, in this application, Mr Mohareb was represented by counsel: Viavattene v Attorney-General (NSW) [2015] NSWCA 44 at [65], per Leeming JA. While I do not agree that a finding that an application is made without reasonable ground carries with it the implication that counsel who appears in the proceeding acts in contravention of his or her duty to the court (by reference the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), reg 64) I do accept, as Leeming JA said in Viavattene, that an application made by counsel is “in a different category”. Accordingly, I do not accept that the second proceeding was made without reasonable ground.

31. [169]

    Mr Mohareb argued that, in view of Gibson DCJ’s strongly expressed views about the “legitimacy” of s 338(1)(c), her Honour ought to have “self-disqualified”. In light of the conclusions I have already expressed, it is unnecessary to address that argument.

32. [170]

    On 12 May 2016 Mr Mohareb filed in the District Court a notice of motion seeking an order pursuant to s 203 of the District Court Act that Mr Palmer be referred to the Supreme Court in relation to allegations of contempt. Section 203 provides that, where it is alleged, or appears to the District Court on its own view, that a person is guilty of contempt of court, it may refer the matter to the Supreme Court for determination.

33. [171]

    Mr Mohareb particularised the contempt he alleged as a physical assault on 1 April 2016 which he asserted had been committed “in relation” to his “proceedings against Mr Palmer”. He gave evidence that the assault occurred when he and Mr Palmer met, by chance, in the Church Point car park, and had a hostile exchange about the litigation. In an affidavit affirmed on 12 May 2016 Mr Mohareb asserted that the alleged assault was committed in order to intimidate him into ceasing his pursuit of the litigation.

34. [172]

    On 13 February 2017 Mr Mohareb filed a second notice of motion, seeking (for the third time) leave pursuant to s 338(1)(c) of the Crimes Act to prosecute Mr Palmer for perjury. On this occasion he particularised the alleged perjury as evidence given orally by Mr Palmer in cross-examination in the s 73 proceeding on 5 June 2015. He alleged that the evidence was false in two respects – as to (i) instructions given by Mr Palmer to his legal representatives, and (ii) as to a denial by Mr Palmer that he knew who had removed the apology from the Facebook page. As to (i), Mr Mohareb asserted that evidence given by Mr Palmer that he had instructed his solicitors to set out, in the affidavit they prepared for him, the whole of the conversations with the Facebook administrators, could not have been true. As to (ii), he asserted that it was Mr Palmer who was responsible for the removal of the apology. (In the earlier judgment Gibson DCJ had declared herself to be “comfortably satisfied” that, despite his denials, it was Mr Palmer who had removed the apology on the second occasion (2 April 2015)).

35. [173]

    In support of the contempt notice of motion, Mr Mohareb filed an affidavit annexing a bundle of emails from Mr Palmer to him. The materials provided to this Court do not disclose any affidavit evidence in support of the s 338(1)(c) application.

36. [174]

    Both notices of motion were heard by Gibson DCJ on 8 May 2017. Her Honour heard detailed evidence about the events at the car park and also about email exchanges between the two men on which Mr Mohareb relied “as further material for referral”.

37. [175]

    On 30 May 2017 Gibson DCJ dismissed both notices of motion: Mohareb v Palmer (No.4) [2017] NSWDC 127. With respect to the 12 May 2016 notice of motion (contempt), Gibson DCJ, while satisfied that an assault had occurred (as alleged in the particularisation of the claim), was also satisfied that that did not occur for the purpose of intimidating Mr Mohareb into abandoning his application for leave to appeal, but was from “the misfortune of the chance encounter” that had occurred ([90]). She was of the view that, although Mr Palmer’s emails to Mr Mohareb were “insulting and derogatory” ([79]), they did not amount to contempt, “as opposed to insults traded between two angry men” ([90]). Her Honour added that, even if she were wrong in that conclusion, she would have exercised the discretion conferred by s 203 against referral ([93]). That was because the conduct involved did not warrant taking such a serious step ([92]).

38. [176]

    With respect to the s 338(1)(c) application, Gibson DCJ did not accept that Mr Palmer’s evidence concerning his instructions to his solicitors could not have been true and held that the evidence was not “a lie or even a misstatement” ([41]). At [54] she declared herself to be “comfortably satisfied” that Mr Palmer had given his solicitors the instruction he claimed to have given.

39. [177]

    The second asserted perjury arose out of evidence that Mr Palmer gave that he did not know who had removed his Facebook posting.

40. [178]

    Gibson DCJ referred to authority to the effect that, before leave is given to prosecute for perjury, the court must be satisfied that the proposed prosecution would have reasonable prospects of success: Moss v McIlveen [2011] NSWCA 77. Although she did not say so explicitly, it is apparent that she was not so satisfied. She mentioned “the comparative triviality of a prosecution over a removal of a post on Facebook …” (at [61]).

41. [179]

    The primary judge found (at [97]) that the proceeding instituted by the notice of motion seeking leave to prosecute Mr Palmer for perjury was instituted without reasonable ground, and was, within s 6(c) of the VP Act, a vexatious proceeding. He was not satisfied, however, that the notice of motion seeking referral of Mr Palmer for contempt was a vexatious proceeding within the terms of s 6(c) of the VP Act, although, he said, there was “a very weak basis” for the exercise of the discretion conferred by s 203 (at [118]).

42. [180]

    The relevant findings and conclusions are to be found in [92], [94] and [97] as follows:

43. [181]

    Mr Mohareb’s submissions on these proceedings constituted, substantially, an attack on the factual findings made by Gibson DCJ and an assertion that the findings were affected by bias that should have caused her Honour to “self-disqualify”.

44. [182]

    Conviction for perjury requires evidence from at least two witnesses, or one witness who is corroborated, that proves the falsity of the statement alleged to have constituted the perjury: Glover v Australian Concrete Floors Pty Ltd [2006] NSWSC 503. Mr Mohareb produced no evidence to support either of his allegations of perjury. In those circumstances the application for leave to prosecute for perjury was doomed to failure and made without reasonable ground.

45. [183]

    On 14 August 2017 Mr Mohareb filed a summons seeking leave to appeal against the dismissal of his notices of motion of 12 May 2016 and 13 February 2017 (the fifth vexatious proceeding). On 2 November 2017 leave to appeal was refused by Basten JA and Sackville AJA: Mohareb v Palmer [2017] NSWCA 281. The Court held that the conclusions of Gibson DCJ were open to her and that there was no reasonable prospect that (on appeal) this Court would reconsider a factual finding (at [10]). It noted that there is no public interest dictating that, in every circumstance in which a party believes, or a judge finds, that a witness has been untruthful, a prosecution for perjury must follow (rejecting a submission of Mr Mohareb to that effect). The Court took the same view with respect to the 13 February 2017 notice of motion.

46. [184]

    Notwithstanding that he found that the notice of motion seeking orders under s 203 of the District Court Act was not a vexatious proceeding, the primary judge nevertheless considered that the application for leave to appeal against its dismissal did come within that category. The application for leave to appeal against the dismissal of both notices of motion was the sixth proceeding found by the primary judge to have been vexatious.

47. [185]

    His Honour then referred to the decision of Schmidt J in which the same proceeding had been advanced as vexatious, but was found by Schmidt J to have been “not either obviously groundless, or its pursuit wrongful …” (at [123]).

48. [186]

    The primary judge concluded:

49. [187]

    Mr Mohareb took issue, in a number of respects, with the approach taken by the primary judge. He argued, reasonably, that the fact that this Court had found that Gibson DCJ’s findings of fact were open to her did not necessarily entail a conclusion that an argument to the contrary was not a basis on which he could rely by way of appeal. That may be correct; but the critical finding by the primary judge, at [124], was the adoption of the finding by Gibson DCJ that “the evidence was not capable of sustaining a charge of contempt”. That being the case, the proceeding was instituted without reasonable ground.

50. [188]

    On 30 November 2017 Mr Mohareb sought special leave to appeal to the High Court against the orders of this Court of 2 November 2017 ([2017] NSWCA 281), refusing leave to appeal (the sixth vexatious proceeding). On 15 February 2018 the application for special leave was refused: [2018] HCASL 18. The High Court said that the decision refusing leave to appeal from each of the three interlocutory orders (the fifth vexatious proceeding) made in that case was “plainly correct”.

51. [189]

    This was the seventh proceeding found by the primary judge to have been vexatious. The relevant findings are to be found in [125] and [126] of the primary judgment, as follows:

52. [190]

    Mr Mohareb argued that the mere fact of dismissal of a proceeding is insufficient to justify the proceeding being labelled groundless. That is correct. Whether a proceeding is groundless depends on more than the outcome. As Mr Mohareb observed, if refusal of special leave to appeal to the High Court were sufficient to warrant the label “without reasonable ground”, a vast proportion of applications for special leave would be so labelled.

53. [191]

    Moreover, “ignorance of substantive, evidentiary and procedural law” on the part of an unrepresented litigant says nothing of the existence of a reasonable ground for the application. That was an irrelevant observation intruded into the determination of whether the application was made without reasonable ground.

54. [192]

    Putting aside Mr Mohareb’s asserted “ignorance”, the finding of the primary judge did not depend only on the outcome. It depended on the reasons given by the High Court for the refusal of special leave. That was that the decision of this Court was “plainly correct”. That implies that the High Court considered that there was no reasonably arguable ground on which to challenge the decision in question. In those circumstances, the application was instituted without reasonable ground.

55. [193]

    During the course of this litigation numerous costs orders were made against Mr Mohareb in favour of Mr Palmer, or Mr and Mrs Palmer. These were assessed under the relevant legislation (Legal Profession Uniform Law Application Act 2014 (NSW)) and certificates filed in the Local Court at Manly, resulting in judgment in favour of the Palmers for almost $13,000. A bankruptcy notice was issued by Mr Palmer on 9 May 2017.

56. [194]

    Mr Mohareb filed a notice of motion in the Local Court seeking an order that the judgment be set aside and an order that the bankruptcy notice also be set aside. The Local Court did not have jurisdiction to make the latter order. A Local Court magistrate declined to make an order setting aside the judgment, but did, on 26 May 2017, grant a stay pending the outcome of review of the certificates. The magistrate also declined to make an order, sought by Mr Mohareb, for his “costs and disbursements” of the proceedings. At one point in the discussion the magistrate expressed doubt about her power to make such an order. She gave as the reason for declining the costs order that Mr Mohareb’s application had not been successful. That was because his application was to set aside the judgment, and she had not made such an order but had, instead, granted a stay pending the outcome of a review of the certificates. The doubt she had expressed about her power to award costs in favour of an unrepresented litigant did not play any part in the brief reasons she gave.

57. [195]

    On 23 June 2017 Mr Mohareb filed a summons in the Supreme Court seeking, under s 40(2)(c) of the Local Court Act 2007 (NSW), leave to appeal against that part of the order of the magistrate that related to his claim for costs and disbursements.

58. [196]

    Mr Mohareb advanced three grounds in support of his application. They were:

59. [197]

    On 1 November 2017 the summons was dismissed by Adamson J: Mohareb v Palmer [2017] NSWSC 1491. Her Honour rejected each of the three grounds as insufficient to warrant a grant of leave.

60. [198]

    Although there is no explicit finding to this effect in the primary judgment, it is clear that the primary judge found that the proceeding in the Supreme Court was vexatious as being instituted without reasonable ground. This was therefore the eighth proceeding found to have been vexatious.

61. [199]

    The primary judge observed that, as a self-represented litigant, Mr Mohareb’s costs would not have been more than a filing fee of about $80, and that Mr Mohareb had claimed to have incurred counsel’s fees of $3,300 for advice. He considered that it was:

62. [200]

    His reasons for finding this proceeding vexatious were expressed in [134], as follows:

63. [201]

    Mr Mohareb asserted that were factual errors in the primary judge’s account of this proceeding. He claimed that he had relied on different facts, namely that the issuing of the bankruptcy notice was both an abuse of process and a contempt of court and that this was “so clearly the case” that he could not be denied a costs order.

64. [202]

    These assertions are not borne out by the summons seeking leave to appeal filed in the Common Law Division, which recounted some history, and then, in [11], pleaded:

65. [203]

    There was no proper basis for the claim that the Magistrate had proceeded under a misapprehension about her power to award costs to an unrepresented litigant. In the proceedings there was a lengthy and unresolved discussion about the applicable legislation. It is true that, during the course of that discussion, the magistrate said that she did not know if she had the power to make a costs order in favour of an unrepresented litigant, and Mr Mohareb made clear that he was seeking disbursements only. The magistrate then declined to make the order sought, on the basis that she had not made the orders sought in the summons (but had made an alternative order).

66. [204]

    The appeal to the Common Law Division was doomed to failure. The primary judge was correct to find that that application was instituted without reasonable ground.

67. [205]

    On 15 November 2017 the bankruptcy notice was set aside in the Federal Circuit Court as invalid because it was based on a costs order that was under review and therefore subject to a statutory suspension: Legal Profession Uniform Law Application Act 2014 (NSW), s 86 (in the matter of Nader Mohareb; Matthew Palmer v Nader Mohareb NSD 1760 of 2017).

68. [206]

    On 15 November 2017 Mr Mohareb filed in the Supreme Court a notice of motion seeking orders under UCPR r 36.16 setting aside the orders of Adamson J and allowing him to appeal from the Local Court orders.

69. [207]

    On 3 April 2018 the summons was dismissed with costs by Lonergan J: Mohareb v Palmer (No 2) [2018] NSWSC 400. Her Honour held that no error was identified in the judgment, and that Mr Mohareb’s reliance on UCPR r 36.16 was misconceived because Adamson J’s decision determined a claim for relief and dismissed the whole of the proceedings (see r 36.16(3)) (at [21]). It may be accepted that her Honour was in error in this respect.

70. [208]

    Again, the primary judge did not explicitly find that this proceeding was vexatious, although it may be inferred that he did. His Honour said:

71. [209]

    Mr Mohareb contended that the decision of Lonergan J was erroneous because there had been a material change in his circumstances since the decision of Adamson J, that being the setting aside of the bankruptcy notice in the Federal Court. As the primary judge found, the setting aside of the bankruptcy notice had no bearing on the decision of the magistrate to decline to award costs in Mr Mohareb’s favour. The primary judge was correct. The ninth proceeding was instituted without reasonable ground and was therefore vexatious within the meaning of s 6(c).

72. [210]

    On 2 July 2018 Mr Mohareb filed a summons seeking leave to appeal against the orders of Lonergan J. The summons was dismissed on 4 October 2018: Mohareb v Palmer [2018] NSWCA 220 by Beazley P and Macfarlan JA. Although the Court found that Lonergan J misapprehended her jurisdiction (having regard to subr (3A) of r 36.16), it nevertheless found no basis for setting aside Adamson J’s judgment.

73. [211]

    This was the tenth proceeding found by the primary judge to have been vexatious. The relevant conclusions are at [143], as follows:

74. [212]

    It was established that Lonergan J had misapprehended her jurisdiction. That, in my opinion, provided a sufficient ground for the application for leave to appeal. It is not to the point that the application failed on other grounds. I do not accept that this proceeding was vexatious as having been brought without reasonable ground. The finding that it was should be set aside.

Mr Palmer’s application for orders under the Vexatious Proceedings Act

1. [213]

   As indicated above, on 15 August 2018 Mr Palmer filed in the Supreme Court the application seeking, against Mr Mohareb under the VP Act, the orders set out in [102] above. On 15 August 2018 he swore an affidavit in support of the application. On 18 October 2018 he swore a second affidavit.

2. [214]

   On 21 September 2018, by notice of motion filed in those proceedings, and amended on 12 April 2019, Mr Mohareb again sought leave pursuant to s 338(1)(c) of the Crimes Act to prosecute Mr Palmer for perjury (order 1 as sought). On this occasion he alleged that perjury was committed by Mr Palmer swearing the affidavits of 15 August 2018 and 18 October 2018. He also sought:

3. [215]

   With respect to Order 2 as sought, a Statement of Charge annexed to the Notice of Motion shows that the contempt alleged arose out of the confrontation between Mr Mohareb and Mr Palmer in the Church Point carpark on 1 April 2016 – that is, the same confrontation that was alleged as the contempt Mr Mohareb sought to have prosecuted in the fifth vexatious proceeding.

4. [216]

   The order sought as (3) was plainly misconceived. Section 23 of the Defamation Act precludes, without the leave of the court, a second or subsequent defamation claim against the same defendant arising out of the publication of “the same or like matter”. It has nothing to do with cross-claims.

5. [217]

   The primary judge dealt with this notice of motion at the outset of his reasons. With respect to orders (4)- (7) as sought, the primary judge concluded that they would be:

6. [218]

   He considered that the claim for leave under s 338(1)(c) of the Crimes Act to prosecute Mr Palmer for perjury was “inherently intimidatory”, made before the court had heard cross-examination of Mr Palmer on the affidavits in which the perjury was alleged to have been committed, or received any contradictory evidence, let alone having made any findings on the evidence said to have been perjured. He held that it was an abuse of process for Mr Mohareb to make that application at the time he did. He added:

7. [219]

   He held that the application that Mr Palmer be dealt with for contempt was an abuse of process, it being the same alleged contempt as had been rejected by Gibson DCJ in Mohareb v Palmer (No.4) [2017] NSWDC 127 at [85]-[93]. He noted that the application to bring a cross-claim in defamation was not pressed.

8. [220]

   On these findings, the primary judge found the notice of motion of 21 September 2018 (as amended on 12 April 2019) was vexatious (although he did not expressly identify into which of the paragraphs of s 6 of the VP Act the proceeding fell). He found that there was no reasonable foundation for any of the orders sought.

9. [221]

   Mr Mohareb has not raised any ground of appeal that challenges that ruling. Nor has he raised any ground of appeal that challenges order 2, going beyond the orders sought by Mr Palmer. Although the primary judge expressly found that the proceeding constituted by the notice of motion was vexatious, it is not clear that it played any part in the ultimate decision to make the orders that were made. It is against those orders that Mr Mohareb now appeals.

10. [222]

    The transcript shows that Mr Mohareb was not given adequate notice of the proposal to consider, and potentially take into account, the notice of motion. It should be disregarded, as should the primary judge’s assessment of it as vexatious.

11. [223]

    The primary judge went on to consider whether, on the detailed findings he had made, Mr Mohareb had “frequently” instituted vexatious proceedings. In that respect, he said:

12. [224]

    Having regard to the conclusions expressed above it will be necessary to reconsider the question of frequency. I have concluded that Mr Mohareb instituted 5 proceedings without reasonable ground. In my opinion, that is sufficient to satisfy the requirement of frequency in s 8(1) of the VP Act. That, in turn, is sufficient to justify order 1 made by the primary judge.

The orders made

1. [225]

   Under the heading “Orders” his Honour said:

2. [226]

   Order 2 made by the primary judge was not sought by Mr Palmer. It was justified by primary judge in the following terms:

3. [227]

   In my opinion there was no warrant for the expansion of the orders sought by Mr Palmer. Order 2 should be set aside.

4. [228]

   The orders permitted by s 8 of the VP Act are discretionary in nature. The discretion is to be exercised with one eye to the ramifications of barring access to the courts, discussed above. A balance is to be struck, between preservation of the fundamental right of access to the processes of the law on the one hand, and restraint of unwarranted exercise of that access, with its consequences on other parties to the litigation. Regard must be had to the position of the opposing litigant. In this case, the history recounted above satisfies me that the interests of justice are best served by upholding order 1 of the orders made by the primary judge.

5. [229]

   The only reason advanced by the Attorney-General in support of the claim for costs of the present proceeding was that he was “the only active contradictor”. The Attorney-General was joined on his own application. I would decline to make an order in his favour for costs.

6. [230]

   Mr Mohareb advanced no argument with respect to the 2 September 2019 orders (that he pay Mr Palmer’s costs, assessed in a gross sum). Notwithstanding that I have found that only half of the proceedings propounded by Mr Mohareb as vexatious were indeed vexatious, he has nevertheless succeeded in obtaining the orders he sought. That the primary judge went further, and made a more expansive order than that sought cannot be laid at Mr Palmer’s door.

7. [231]

   I would not disturb the orders of 2 September 2019.

8. [232]

   The orders I propose are: