Mohareb v Kelso (No 3) [2021] NSWCA 213

Mohareb v Kelso (No 3) [2021] NSWCA 213

The notice of motion filed 31 August 2021 was dismissed because the recusal applications and attempt to expand leave to appeal repeated matters already rejected and there was no good reason to disturb the costs orders in favour of John Kelso. The appeal was allowed in part because the amended summons filed on 13 August 2020 was filed as a continuation of the contempt proceedings commenced against Alexander Kelso before the vexatious proceedings order, and therefore was not taken to have been dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Procedural Rulings in Civil Proceedings / Court of Appeal Hearing of a Notice of Motion Filed 31 August 2021 and Appeal From Orders of Ierace J in the Supreme Court of New South Wales, Common Law Division
Outcome
Notice of motion dismissed; appeal allowed in part.
Legal Topics
['recusal for Apprehended and Actual Bias' 'scope of Leave to Appeal' 'operation of the Vexatious Proceedings Act 2008 (nsw)' 'whether Amended Summons Was a Continuation of Existing Proceedings' 'costs Following Dismissal or Discontinuance']
['civil Procedure' 'courts and Judges' 'vexatious Proceedings' 'contempt of Court' 'costs'] ['recusal for Apprehended and Actual Bias' 'scope of Leave to Appeal' 'operation of the Vexatious Proceedings Act 2008 (nsw)' 'whether Amended Summons Was a Continuation of Existing Proceedings' 'costs Following Dismissal or Discontinuance']

Case Brief

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Procedural Posture

Procedural Rulings in Civil Proceedings / Court of Appeal Hearing of a Notice of Motion Filed 31 August 2021 and Appeal From Orders of Ierace J in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether Macfarlan JA and McCallum JA should recuse themselves on grounds of apprehended or actual bias.' "Whether Mr Mohareb's notice of motion filed 31 August 2021 should reopen or expand the scope of leave to appeal to include issues concerning John Kelso's costs." 'Whether the Registrar was right to dismiss the notice of motion filed 1 February 2018 once it was to be replaced by an amended summons.' 'Whether the amended summons filed on 13 August 2020 was a continuation of proceedings commenced before the vexatious proceedings order or a new proceeding taken to be dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).']

Ratio Decidendi

The notice of motion filed 31 August 2021 was dismissed because the recusal applications and attempt to expand leave to appeal repeated matters already rejected and there was no good reason to disturb the costs orders in favour of John Kelso. The appeal was allowed in part because the amended summons filed on 13 August 2020 was filed as a continuation of the contempt proceedings commenced against Alexander Kelso before the vexatious proceedings order, and therefore was not taken to have been dismissed by operation of the Vexatious Proceedings Act 2008 (NSW).

Court Disposition

Notice of motion dismissed; appeal allowed in part.

Orders

  • ["Dismiss Mr Mohareb's notice of motion filed 31 August 2021." "Order Mr Mohareb to pay John Kelso's costs of that motion." 'Appeal allowed in part.' 'Set aside the notation made by order (3) on 16 October 2020.' 'Note instead that the amended summons filed by Mr Mohareb on 13 August 2020 is not taken to have been...