Mohareb v Kelso (No 2) [2018] NSWCA 246

Mohareb v Kelso (No 2) [2018] NSWCA 246

The notice of motion was dismissed because the applicant did not demonstrate actual bias, prejudgment, a material change of circumstances, or any material misunderstanding warranting reopening of the refusal of leave to appeal. The Court's questioning during the leave hearing was directed to identifying relevant issues in a time-limited leave application, disagreement with the Court's reasoning or outcome did not establish bias, and the requested findings against District Court judicial officers were unavailable by motion in the leave proceedings.

Jurisdiction
Australia
Judgment Date
26 October 2018
Procedural Posture
Civil Procedure Application for Leave to Appeal; Reopening Application / Notice of Motion to Set Aside and Reopen Refusal of Leave to Appeal
Outcome
The applicant's notice of motion filed 13 August 2018 was dismissed.
Legal Topics
['application for Leave to Appeal' 'reopening Application' 'actual Bias' 'judicial Disqualification' 'interlocutory Procedural Rulings']
['civil Procedure' 'appellate Procedure' 'procedural Fairness'] ['application for Leave to Appeal' 'reopening Application' 'actual Bias' 'judicial Disqualification' 'interlocutory Procedural Rulings']

Case Brief

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Procedural Posture

Civil Procedure Application for Leave to Appeal; Reopening Application / Notice of Motion to Set Aside and Reopen Refusal of Leave to Appeal

Legal Issues

  1. 1 ["Whether the applicant's notice of motion should be treated as an application to reopen the Court's refusal of leave to appeal." 'Whether alleged actual bias by members of the Court constituted an irregularity, illegality or order made against good faith under Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1).' 'Whether the conduct of the leave hearing, the reasons for judgment, or prior refusals of leave in other matters demonstrated actual bias or prejudgment.' 'Whether the Court could make findings of actual bias against District Court judicial officers by motion in proceedings seeking leave to appeal.' 'Whether the reopening application should be heard in open court.']

Ratio Decidendi

The notice of motion was dismissed because the applicant did not demonstrate actual bias, prejudgment, a material change of circumstances, or any material misunderstanding warranting reopening of the refusal of leave to appeal. The Court's questioning during the leave hearing was directed to identifying relevant issues in a time-limited leave application, disagreement with the Court's reasoning or outcome did not establish bias, and the requested findings against District Court judicial officers were unavailable by motion in the leave proceedings.

Court Disposition

The applicant's notice of motion filed 13 August 2018 was dismissed.

Orders

  • ["Dismiss the applicant's notice of motion filed 13 August 2018."]