Mohareb v Manly Local Court

1. [1]

   GLEESON JA: Before the Court in the referrals list is an application by Mr Nader Mohareb, relating to his application for leave to appeal from a judgment of Button J on 5 April 2024 dismissing Mr Mohareb’s application for judicial review of an interlocutory decision of Magistrate Denes in the Local Court of New South Wales at Manly on 13 July 2022 refusing to issue two subpoenas sought by Mr Mohareb in criminal proceedings brought against him: Mohareb v Manly Local Court [2024] NSWSC 345.

2. [2]

   The background to the application is as follows. In his summary of argument dated 27 May 2024, Mr Mohareb sought a concurrent hearing of his application for leave to appeal and argument on the appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.12(4)(g).

3. [3]

   On 5 August 2024 there was a directions hearing before the Registrar. The Registrar informed the parties that the President had determined that the application for leave be listed for a “leave alone” hearing and made a direction listing the matter for hearing (leave only) on 26 September 2024.

4. [4]

   By amended notice of motion filed 20 September 2024 Mr Mohareb seeks to vary the determination of the President that there be a leave only hearing. Instead, he seeks an order that the amended summons be listed either as an appeal “as of right”, or alternatively, for a concurrent hearing. That application is stated to be made under UCPR, rr 36.15, 36.16 or 36.17. In oral argument, Mr Mohareb sought a review of the “administrative decision” of the President that the leave application be listed for a leave only matter.

5. [5]

   Mr Mohareb also seeks an order vacating the hearing listed on 26 September 2024 on the ground that the Court has not yet determined the first aspect of his amended notice of motion.

6. [6]

   The second respondent opposed both applications.

Application to vary leave only hearing

1. [7]

   The source of power to make the listing decision that is in dispute is UCPR, r 51.14. This rule enables “the court” to deal with applications for an order that an application for leave to appeal be heard concurrently with argument on the appeal, and the appeal, in the absence of the public, and without attendance of any person. Pursuant to s 46 of the Supreme Court Act 1970 (NSW), “the court” includes a single judge of appeal.

2. [8]

   Parties are afforded procedural fairness with respect to the making of an administrative decision under UCPR, r 51.14 as the rules require an applicant and respondent to respectively state in their summary of argument and response “whether the application should be heard with the argument on the appeal, and why”: UCPR, rr 51.12(4)(g) and 51.13(2)(b)(iv). Practice Note No SC CA1 states that the parties will be advised as to whether a summons for leave to appeal will proceed by way of a leave only hearing or will be heard concurrently with the appeal, by the Registrar, usually at the first directions hearing (par [8]). This occurred here on 5 August 2024.

3. [9]

   A decision of the President or any other a single judge of appeal under UCPR, r 51.14 is an administrative direction. Such a decision is not amenable to challenge under UCPR, r 36.15, 36.16 or 36.17 because it is not a “judgment or order”. Nor is the decision amenable to “discharge or variation” under s 46(4) of the Supreme Court Act. As Campbell JA (Tobias and Young JJA agreeing) said in Avery v Registrar of Births, Deaths and Marriages; Avery v State of NSW (Attorney-General’s Department) (2010) 79 NSWLR 354; [2010] NSWCA 72 at [160]:

4. [10]

   To the extent that Campbell JA went on in Avery at [161] to consider the challenge to the listing direction (in that case for a concurrent hearing) as an application to review the decision of a single judge of appeal under s 46(4) of the Supreme Court Act, his Honour’s remarks were obiter in circumstances where the Court had already dealt with the leave application and the appeal concurrently.

5. [11]

   That an administrative decision by the President of the Court of Appeal or any other single judge of appeal under UCPR, r 51.14 with respect to listing a leave application, either for a leave only hearing or a concurrent hearing, is not justiciable (except on grounds of denial of procedural fairness, which is not relied on in this case) is consistent with authority that a party cannot challenge the nomination or allocation of judges to be a member of this court to hear and determine matters. Thus s 39(1) of the Supreme Court Act 1970 (NSW) relevantly provides:

6. [12]

   In Rajski v Wood (1989) 18 NSWLR 512, Hope AJA said at 526:

7. [13]

   Priestley JA agreed with Hope AJA, noting at 523, that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the court, to the administrative arrangements within the court by which the business of the court is allocated amongst its judges.

8. [14]

   One further matter should be mentioned. Insofar as Mr Mohareb claims that he has an appeal “as of right”, that is inconsistent with his amended summons seeking leave to appeal, which acknowledges the requirement for leave, as does Mr Mohareb’s summary of argument filed in support of a grant of leave to appeal. If a party to proceedings claims that they have an appeal “as of right”, the appropriate course is to file a notice of appeal and seek an extension of time to appeal, if necessary, if an appeal is out of time: UCPR, rr 15.9 and 51.16(b). That has not occurred in this case.

9. [15]

   Paragraph [1] of Mr Mohareb’s amended motion filed 20 September 2024 will be dismissed.

Application to vacate the hearing

1. [16]

   Given that the Court has dealt with the first aspect of Mr Mohareb’s motion, there is no basis for vacating the hearing on 26 September 2024 on the ground that par [1] of the motion has not been determined.

2. [17]

   Turning to the second aspect of Mr Mohareb’s application to vacate the hearing, Mr Mohareb said that he needs more time to prepare given the late service of the second respondent’s response. He is correct that the response served last Friday 20 September 2024 was late. However, he has not articulated how anything in the response took him by surprise, or why that the short point responses by the second respondent give rise to any difficulty in dealing with the response at the hearing listed for this Thursday. Those short points cover the same matters that were in issue before Button J concerning Mr Mohareb’s challenge to the Magistrate’s decision refusing to issue the subpoenas on the ground that either subpoena, as then framed, was not for a legitimate forensic purpose and was too broad.

3. [18]

   In the circumstances, including taking into account that Mr Mohareb is self-represented, I am satisfied that the application to vacate the hearing on 26 September 2024 should be refused.

4. [19]

   One procedural matter should be noted. The first respondent indicated in its response that it will seek a direction at the hearing that the name of the first respondent in the court’s records concerning this matter be amended to “Local Court of New South Wales”. Such a direction is appropriate (see Local Court Act 2007 (NSW), s 7), however, when this issue was raised by the Court during the hearing, the first respondent indicated that it was content for the matter to be dealt with at the leave only hearing.

Orders

1. [20]

   Both applications have failed. There is no reason why costs should not follow the event (UCPR, r 42.1), however, the first respondent does not seek an order for costs.

2. [21]

   Accordingly, the Court makes the following orders:

   1. (1)

      The applicant’s amended notice of motion filed 20 September 2024 is dismissed.

   2. (2)

      The applicant to pay the second respondent’s costs of the amended motion.