Mohareb v Kelso [2020] NSWCA 105

Mohareb v Kelso [2020] NSWCA 105

The alleged contempt was not contempt in the face of the Court of Appeal because the acts were said to have occurred at the applicant's home, well away from the Court. The notice of motion and statement of charge did not support any inference of disobedience of a judgment or order of the Court of Appeal or breach of an undertaking to it. Listing the contempt proceeding together with a summons seeking leave to appeal would not be necessary or convenient for the Court of Appeal's functions and would create confusion, expense and delay. The proceeding was therefore not assigned to the Court of Appeal under s 48(2), was assigned to the Common Law Division under s 53(4), and should be remitted...

Jurisdiction
Australia
Judgment Date
05 June 2020
Procedural Posture
Notice of Motion Seeking Punishment for Criminal Contempt of Court and Negligence Orders / Application in the Court of Appeal Concerning Whether the Notice of Motion Should Be Remitted to the Common Law Division of the Supreme Court
Outcome
The notice of motion was remitted to the Common Law Division of the Supreme Court, and the applicant was ordered to pay any respondents' costs incurred by the notice of motion having been filed in the Court of Appeal.
Legal Topics
['assignment of Proceedings to the Court of Appeal' 'criminal Contempt' 'contempt in the Face of the Court' 'remitter to the Common Law Division' 'notice of Motion']
['civil Procedure' 'contempt of Court'] ['assignment of Proceedings to the Court of Appeal' 'criminal Contempt' 'contempt in the Face of the Court' 'remitter to the Common Law Division' 'notice of Motion']

Case Brief

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Procedural Posture

Notice of Motion Seeking Punishment for Criminal Contempt of Court and Negligence Orders / Application in the Court of Appeal Concerning Whether the Notice of Motion Should Be Remitted to the Common Law Division of the Supreme Court

Legal Issues

  1. 1 ['Whether the alleged contempt was contempt in the face of, or in the hearing of, the Court of Appeal within s 48(2)(i)(i) of the Supreme Court Act 1970 (NSW).' 'Whether the alleged conduct constituted disobedience of a judgment or order of the Court of Appeal or breach of an undertaking given to the Court of Appeal within s 48(2)(i)(ii) or (iii) of the Supreme Court Act 1970 (NSW).' 'Whether assignment of the notice of motion to the Court of Appeal was necessary or convenient for the discharge of the functions of the Court of Appeal within s 48(2)(j) of the Supreme Court Act 1970 (NSW).' 'Whether the notice of motion should be remitted to the Common Law Division of the Supreme Court.']

Ratio Decidendi

The alleged contempt was not contempt in the face of the Court of Appeal because the acts were said to have occurred at the applicant's home, well away from the Court. The notice of motion and statement of charge did not support any inference of disobedience of a judgment or order of the Court of Appeal or breach of an undertaking to it. Listing the contempt proceeding together with a summons seeking leave to appeal would not be necessary or convenient for the Court of Appeal's functions and would create confusion, expense and delay. The proceeding was therefore not assigned to the Court of Appeal under s 48(2), was assigned to the Common Law Division under s 53(4), and should be remitted...

Court Disposition

The notice of motion was remitted to the Common Law Division of the Supreme Court, and the applicant was ordered to pay any respondents' costs incurred by the notice of motion having been filed in the Court of Appeal.

Orders

  • ["The applicant's notice of motion of 1 February 2018 is remitted to the Common Law Division of the Supreme Court." 'The applicant is to pay any costs of the respondents incurred by the notice of motion having been filed in this Court.']