Mohareb v Palmer (No. 3) [2016] NSWDC 38

Mohareb v Palmer (No. 3) [2016] NSWDC 38

The plaintiff failed to identify with sufficient precision any false statement on oath by the first defendant capable of amounting to perjury. The complaint was essentially an alleged omission from an affidavit prepared by the first defendant's legal advisers, while evidence accepted by the Court indicated that the first defendant instructed that the entirety of the relevant communications and endeavours to post the apology be conveyed. The asserted materiality of the omitted material was unclear, and the fresh screenshot evidence further undermined confidence in the plaintiff's factual case. The plaintiff therefore did not establish a proper basis or good prospects for a perjury...

Jurisdiction
Australia
Judgment Date
04 March 2016
Procedural Posture
Civil Procedural Application Arising After Concluded Defamation Proceedings / Plaintiff's Notice of Motion for Leave Under S 338(1)(c) Crimes Act 1900 (nsw) to Prosecute the First Defendant for Perjury; Defendant's Notice of Motion Seeking Dismissal or Security for Costs
Outcome
Plaintiff's Notice of Motion dismissed; defendant's Notice of Motion dismissed; plaintiff ordered to pay defendant's costs of the Notice of Motion and of this application on an indemnity basis.
Legal Topics
['leave to Prosecute for Perjury' 'false Statement on Oath' 'false Representation by Omission' 'identification of Alleged Perjury With Precision' 'electronically Stored Information and Social Media Screenshots' 'indemnity Costs']
['civil Procedure' 'criminal Law' 'evidence' 'defamation' 'costs'] ['leave to Prosecute for Perjury' 'false Statement on Oath' 'false Representation by Omission' 'identification of Alleged Perjury With Precision' 'electronically Stored Information and Social Media Screenshots' 'indemnity Costs']

Case Brief

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Procedural Posture

Civil Procedural Application Arising After Concluded Defamation Proceedings / Plaintiff's Notice of Motion for Leave Under S 338(1)(c) Crimes Act 1900 (nsw) to Prosecute the First Defendant for Perjury; Defendant's Notice of Motion Seeking Dismissal or Security for Costs

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave pursuant to s 338(1)(c) Crimes Act 1900 (NSW) to prosecute the first defendant for perjury in relation to an affidavit sworn on 23 April 2015.' "Whether the alleged false statement or omission from the first defendant's affidavit was identified with sufficient precision and was capable of amounting to perjury." 'Whether the asserted omission was material to the proceedings concerning enforcement of the settlement deed under s 73 Civil Procedure Act 2005 (NSW).' "Whether the defendant's Notice of Motion seeking dismissal of the statement of claim or security for costs should be granted." 'What costs order should be made.']

Ratio Decidendi

The plaintiff failed to identify with sufficient precision any false statement on oath by the first defendant capable of amounting to perjury. The complaint was essentially an alleged omission from an affidavit prepared by the first defendant's legal advisers, while evidence accepted by the Court indicated that the first defendant instructed that the entirety of the relevant communications and endeavours to post the apology be conveyed. The asserted materiality of the omitted material was unclear, and the fresh screenshot evidence further undermined confidence in the plaintiff's factual case. The plaintiff therefore did not establish a proper basis or good prospects for a perjury...

Court Disposition

Plaintiff's Notice of Motion dismissed; defendant's Notice of Motion dismissed; plaintiff ordered to pay defendant's costs of the Notice of Motion and of this application on an indemnity basis.

Orders

  • ["Plaintiff's Notice of Motion dismissed." "Plaintiff pay defendant's costs of the Notice of Motion and of this application on an indemnity basis." "Defendant's Notice of Motion dismissed with no order as to costs."]