Mohareb v Office of the Director of Public Prosecutions NSW

1. [1]

   THE COURT: Mr Nader Mohareb (the applicant) and Mr Alexander Kelso were residents of Scotland Island. They had an acrimonious relationship. In July 2015, the applicant commenced proceedings in the District Court against Mr Kelso and another man claiming damages for defamation and trespass. Over the following years, the applicant expanded the scope of that litigation by joining additional parties and also commenced separate litigation.

2. [2]

   In 2017, the applicant attempted to have all of his litigious claims consolidated. That application was refused and the proceedings against Mr Kelso were listed to be heard separately. The hearing of the action against Mr Kelso did not go ahead by reason of a last-minute appeal commenced by the applicant against the refusal to consolidate his claims. As a result of that application, Mr Kelso was told by the list judge in the District Court that there would be further delay of at least 12 months before the applicant’s original claim against him could be heard.

3. [3]

   On 4 December 2017, when the application for leave to appeal against the refusal to consolidate the actions came before the Court of Appeal, Mr Kelso expressed his dissatisfaction with what he said was an injustice. That evening, Mr Kelso broke into the applicant’s home and violently assaulted him.

4. [4]

   Mr Kelso was charged over that violent assault and ultimately pleaded guilty to an offence of causing grievous bodily harm with intent to do so and was sentenced for that offence in the District Court: R v Kelso [2020] NSWDC 157. The applicant has expressed in emphatic terms his dissatisfaction with the outcome of the criminal process, both as to the offence to which the Crown accepted a plea, and the sentence that was imposed (a term of imprisonment for 1 year and 10 months, to be served by way of an Intensive Correction Order, with an additional obligation to perform 400 hours of community service). A Crown appeal against sentence was lodged in the Court of Criminal Appeal but ultimately discontinued by the DPP. The applicant has expressed, in equally emphatic terms, his dissatisfaction with the decision of the DPP to discontinue the Crown appeal against sentence.

5. [5]

   On 1 February 2018, over two years before the sentence was imposed on Mr Kelso in the District Court, the applicant filed a notice of motion seeking to have Mr Kelso dealt with for contempt of court on the basis of the same assault which became the subject of the District Court criminal proceedings. Much litigation has occurred in relation to the applicant’s motion in the intervening six years. Unless it is relevant to the present application for leave to appeal, we will not attempt to summarise that litigation history. The contempt proceedings are allocated to the Common Law Division of the Court: Mohareb v Kelso [2020] NSWCA 105 per Simpson AJA.

6. [6]

   There are obvious issues about conducting contempt proceedings about the same subject matter as criminal proceedings which have already been concluded. As Leeming JA explained in Mohareb v Kelso (No 3) [2021] NSWCA 213:

7. [7]

   Reflecting the obvious issues about conducting contempt proceedings about the same subject matter as concluded criminal proceedings, on 5 May 2023, the Attorney General of NSW apparently filed a notice of motion in the applicant’s contempt proceedings seeking an order they be stayed on the principles of double jeopardy or as an abuse of process. The applicant referred to this notice of motion before the primary judge and in this Court but did not provide the Court with a copy.

8. [8]

   Despite the applicant’s draft notice of appeal seeking to impugn the conduct of a large number of past and present judicial officers of this Court and the District Court over many years, this application for leave to appeal is in a very narrow compass. Although hundreds of pages of evidence and submissions were filed by the applicant, at its heart this is an application for leave to appeal from the setting aside of part of one subpoena and the setting aside of one notice to produce addressed to the subpoena recipient in the same terms as the affected part of the subpoena. The only relevant orders sought are:

9. [9]

   We will address the remaining orders sought in the application for leave to appeal (4 and 5) when addressing the applicant’s separate claim by his Amended Notice of Motion that a warrant should be issued for Mr Kelso’s arrest.

10. [10]

    On 7 February 2023, Bellew J in the Common Law Division made orders, relevantly, permitting the applicant to issue a subpoena to the Office of the Director of Public Prosecutions. That subpoena was issued dated 8 March 2023 and there was compliance with part of it. On 5 May 2023, the Office of the Director of Public Prosecutions filed a notice of motion seeking to set aside the balance of the subpoena. On 15 August 2023, a notice to produce was served by the applicant on the Office of the Director of Public Prosecutions in exactly the same terms as the part of the subpoena sought to be set aside for lack of legitimate forensic purpose.

11. [11]

    On 24 August 2023 Sweeney J (the primary judge) delivered reasons ex tempore:

    1. (1)

       setting aside part of a subpoena dated 8 March 2023; and

    2. (2)

       setting aside a notice to produce dated 15 August 2023 addressed by the applicant to the respondent.

12. [12]

    Her Honour concluded that:

13. [13]

    In this application for leave to appeal the applicant relied upon:

    1. (1)

       A White Folder containing:

14. [14]

    A second folder was relied upon by the applicant containing an affidavit affirmed by Mr Mohareb on 22 February 2024.

15. [15]

    At the hearing of the application for leave to appeal additional material was relied upon as follows:

    1. (1)

       Written submissions by the applicant in reply dated 10 April 2024;

    2. (2)

       An amended notice of motion dated 27 March 2024;

    3. (3)

       Email correspondence between Mr Mohareb and the ODPP and the NSW Police Force between 1-15 October 2019 that was handed up in Court on 22 April 2024;

    4. (4)

       An affidavit affirmed by Mr Mohareb on 8 April 2024;

    5. (5)

       An affidavit affirmed by Mr Mohareb on 16 April 2024.

16. [16]

    We have taken all of that evidence and those submissions into account.

Consideration

1. [17]

   Leave to appeal will ordinarily only be granted when the proposed appeal raises an issue of principle, a question of public importance, or seeks to address a reasonably clear injustice going beyond something that is merely arguable: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

2. [18]

   Grounds 1-3 concern the subpoena and the notice to produce.

3. [19]

   In relation to the subpoena, the primary judge was plainly correct to set aside the subpoena because no legitimate forensic purpose was shown. The applicant has not demonstrated how the documents could possibly aid in determining any issue in the proceedings.

4. [20]

   Bell P (as the Chief Justice then was) explained the use of the phrase “legitimate forensic purpose” in some detail in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65] and [68]:

5. [21]

   The applicant’s submissions seeking leave to appeal on the critical issue are summarised at page 3 of the applicant's summary of argument:

6. [22]

   These submissions demonstrate, conclusively, the absence of any legitimate forensic purpose. The primary judge was undoubtedly correct in concluding that the applicant’s action seeking to punish Mr Kelso for contempt could not involve any collateral attack on the DPP for its conduct of, or decision making in, the prosecution of Mr Kelso. Any evidence supporting the assertion that the DPP was “negligent, incompetent and intentionally tortuous” could have no bearing on the applicant’s contempt proceedings against Mr Kelso.

7. [23]

   The applicant emphasised in his oral submissions that the internal communications of the ODPP are allegedly relevant not only to his contempt charge against Mr Kelso but also to “countering any reliance by the Attorney General on double jeopardy as a ground to have my summons summarily dismissed, on the basis that it is purportedly, an abuse of process”.

8. [24]

   The documents sought by the subpoena are equally irrelevant to any claim by the Attorney General that the applicant’s contempt proceedings amount to double jeopardy or are otherwise an abuse of process. As Gummow and Hayne JJ (commanding a majority of the Court) in Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30 explained:

9. [25]

   In addressing the question of whether the first prosecution, the criminal case resolved in the District Court, was for an offence "substantially the same" as the second offence, the applicant’s contempt proceeding, “requires examination of the elements of the two offences in question, rather than of the evidence that may be offered in proof of each”. We reject the assertion that any “evidence” the ODPP allegedly acted negligently, incompetently and intentionally tortuously towards the applicant in the course of Mr Kelso’s prosecution could possibly be relevant to the issue of double jeopardy.

10. [26]

    We also reject the applicant’s claim that the documents sought are apparently relevant to the Attorney General’s claim of abuse of process. In Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42, the High Court explained the operation of the doctrine of abuse of process as it applied to criminal proceedings. Mason CJ, whist emphasising that the concept of abuse of process should not be unnecessarily confined, cited Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 as establishing that:

11. [27]

    The Attorney General’s motion in the present case apparently seeks to contend that the applicant’s contempt proceedings seek to “litigate anew a case which had already been disposed of by earlier proceedings”. We reject the assertion that any “evidence” about the conduct of the ODPP in the course of Mr Kelso’s prosecution could possibly be relevant to the issue of an abuse of process by the applicant in prosecuting the contempt motion.

12. [28]

    In relation to the notices to produce, there were three. As to the first notice, it was in identical form to that part of the subpoena set aside by the primary judge seeking “Copies of the ‘additional similar cases’ which the Deputy Director of Public Prosecutions, Mr. Peter McGrath refers to in his 2nd June 2020 letter with ODPP reference number 201717404, copy of which is annexed to this Notice to produce”. The considerations that apply to the setting aside of subpoenas are generally applicable to notices to produce: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [34]-[38] (per Ward CJ in Eq). For the same reasons as already given, the decision of the primary judge to set aside the notice to produce as not disclosing a legitimate forensic purpose was plainly correct.

13. [29]

    As to the second notice to produce, the applicant complained that compliance by the ODPP was belated, but accepted the documents sought had been produced. No error has been shown in the way the primary judge dealt (or did not deal) with this notice to produce. There is no utility in granting leave in relation to a notice to produce which has been complied with, even if belatedly.

14. [30]

    As to the third notice to produce, the applicant submitted that the recipient had informed him that they had complied with its terms. There was no evidence that this statement by the ODPP was not correct. There is no occasion to grant leave to appeal to address this issue as no arguable error has been shown on the part of the primary judge.

15. [31]

    No issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable has been shown. Leave to appeal on grounds 1-3 should be refused. Even if leave had been granted, that leave would not have extended to the applicant’s draft notice of appeal which addressed completely different and irrelevant matters.

16. [32]

    On 27 March 2024, orders for substituted service of an amended notice of motion (filed 7 March 2024), seeking the issue of an arrest warrant for Mr Kelso under Part 55 r 10, were made by Griffiths AJA: Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68. The issue of an arrest warrant under Part 55 r 10 for Mr Kelso had been also sought by proposed order 4 in the application for leave to appeal.

17. [33]

    Courts have repeatedly emphasised the need for strict compliance with the procedural requirements in establishing an alleged contempt of court: D Rolph, Contempt (2023, Federation Press) at 756 and the cases there cited. The need for strict compliance with procedural requirements when dealing with allegations of contempt was recently again emphasised in Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [90]-[95] (per Kirk JA).

18. [34]

    We respectfully disagree with Griffiths AJA that this was an appropriate case to permit substituted service to address the issue of an arrest warrant under Part 55 r 10. Simply put, there was no evidence of strict and formal compliance by the applicant with the requirements of Part 55 of the Supreme Court Rules 1970 (NSW). The requirements for clarity and formality exist not only to serve the end of procedural fairness. They also serve the purpose of ensuring that such matters will not be lightly raised: Matthews v ASIC [2009] NSWCA 155 at [41] per Tobias JA. The primary judge was correct to refuse to countenance an informal application for the arrest of Mr Kelso. An application for leave to appeal from the orders of the primary judge is not an appropriate occasion to permit an applicant to seek orders for the arrest of a person.

19. [35]

    Nevertheless, the order of Griffiths AJA for substituted service having been made, we will deal with the applicant’s claim that the issue of an arrest warrant for Mr Kelso under Part 55 r 10 is warranted.

20. [36]

    The applicant sought to have Mr Kelso arrested pursuant to Part 55 r 10 of the Supreme Court Rules, which states:

21. [37]

    We will assume, without deciding, that Part 55 r 10(a) has properly been complied with. This is an assumption favourable to the applicant, noting that in the area of contempt precision in formulation of a charge is critical: Inghams Enterprises Pty Ltd v Timania Pty Ltd (2005) 221 ALR 823; [2005] FCAFC 155, at [32]-[34].

22. [38]

    The central question on the present application is whether the requirements of Part 55 r 10(b) have been met. Part 55 r 10(b) requires proof, on the balance of probabilities, that the alleged contemnor is likely to withdraw or abscond from the jurisdiction. In Court of Appeal, Registrar of v Ritter (1985) 34 NSWLR 641 at 644, Kirby P explained that although “abscond” and “withdraw” have separate meanings, both involve leaving NSW. His Honour said:

23. [39]

    In Part 55 r 10(b) “likely” means more probable that not. A temporary absence from NSW, such as for the purposes of conducting business overseas or a holiday, does not amount to evidence of a person likely absconding or withdrawing from the jurisdiction: Schnabel v Lui (2002) 56 NSWLR 119; [2002] NSWSC 1184.

24. [40]

    We have considered all of the evidence and submissions relied upon by the applicant for the purposes of the notice of motion, including the submissions made to Griffiths AJA which the applicant referred to in his oral address before us. There is not the slightest reason in the evidence or submissions to conclude that Mr Kelso is likely to “abscond” or otherwise “withdraw” himself from the NSW. No basis has been shown by the applicant for the application of the power of arrest under Part 55 r 10.

25. [41]

    The evidence, at its highest, demonstrates that the applicant has faced difficulties in serving various documents upon Mr Kelso and that Mr Kelso has apparently taken steps to avoid being contacted by or on behalf of the applicant. The evidence demonstrates the applicant’s agents have located Mr Kelso’s residence and workplace. Other than evidence of a one-week holiday in Queensland some time ago, there is no evidence that Mr Kelso has ever left NSW, much less that he plans to abscond or otherwise withdraw from the jurisdiction.

26. [42]

    It simply does not follow from the applicant’s non-attendance at this (or any other) hearing and the associated difficulty faced by the applicant in serving documents on Mr Kelso that there is any evidence that that that Mr Kelso plans to abscond or withdraw, or has already absconded or withdrawn, from the jurisdiction as those terms are understood in law as explained by Kirby P in Ritter.

27. [43]

    The amended notice of motion must be dismissed, with costs. No basis has been shown to justify the arrest of Mr Kelso under Part 55 r 10. For the same reason, leave to appeal on proposed ground 4 should be refused. No arguable basis has been shown warranting the arrest of Mr Kelso, much less that there was an error by the primary judge in failing to deal with the applicant’s informal application that a warrant for the arrest of Mr Kelso issue.

28. [44]

    Leave to appeal on proposed ground 5 should also be refused. No basis whatever for making either orders 5(a) or 5(b) was shown. There is no basis shown, or legal principle identified, justifying any charge being levelled against Mr Kelso and no basis in fact or law shown for the referral to the Independent Commission against Corruption of any person.

Orders

1. [45]

   For the foregoing reasons the Court makes the following orders:

   1. (1)

      Leave to appeal dismissed.

   2. (2)

      Amended notice of motion filed on 27 March 2024 dismissed.

   3. (3)

      The applicant pay the respondent’s costs of the application for leave to appeal and the costs of the motion dated 7 March 2024 and the amended notice of motion filed 27 March 2024.