Mohareb v Palmer (No. 4) [2017] NSWDC 127

Mohareb v Palmer (No. 4) [2017] NSWDC 127

The plaintiff failed to show a reasonable prospect of conviction for perjury: the first asserted perjury was not shown to be false and the corroborative evidence favoured the first defendant, while the second relied on a prior factual and credit finding without the corroborative or expert evidence needed to support...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 May 2017
Procedural Posture
Civil Procedural Motions Concerning Leave to Prosecute for Perjury and Referral for Alleged Contempt of Court / Hearing of Plaintiff's Notices of Motion Filed 13 February 2017 and 12 May 2017
Outcome
Plaintiff's notices of motion dismissed; judgment to be provided to the Commissioner of Police; liberty to apply in relation to costs; exhibits retained until further order.
Legal Topics
['leave to Prosecute for Perjury Under S 338(1)(c) Crimes Act 1900 (nsw)' 'alleged False Statements on Oath' 'referral to Supreme Court for Alleged Contempt Under S 203 District Court Act 1973 (nsw)' 'alleged Assault Connected With Litigation' 'referral of Judgment to Commissioner of Police']
['practice and Procedure' 'contempt of Court' 'criminal Law' 'civil Procedure'] ['leave to Prosecute for Perjury Under S 338(1)(c) Crimes Act 1900 (nsw)' 'alleged False Statements on Oath' 'referral to Supreme Court for Alleged Contempt Under S 203 District Court Act 1973 (nsw)' 'alleged Assault Connected With Litigation' 'referral of Judgment to Commissioner of Police']

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Procedural Posture

Civil Procedural Motions Concerning Leave to Prosecute for Perjury and Referral for Alleged Contempt of Court / Hearing of Plaintiff's Notices of Motion Filed 13 February 2017 and 12 May 2017

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under s 338(1)(c) Crimes Act 1900 (NSW) to prosecute the first defendant for perjury said to have occurred while giving evidence on 5 June 2015.' 'Whether the alleged false statements had a reasonable prospect of supporting a conviction for perjury, including proof of falsity and corroboration.' "Whether the first defendant's conduct during the Church Point car park incident amounted to contempt of court warranting referral to the Supreme Court under s 203 District Court Act 1973 (NSW)." 'Whether, even if conduct capable of amounting to contempt occurred, the Court should exercise its discretion to refer the matter.' 'Whether a copy of the judgment should be provided to the Commissioner of Police because of safety and peace concerns affecting Scotland Island residents.']

Ratio Decidendi

The plaintiff failed to show a reasonable prospect of conviction for perjury: the first asserted perjury was not shown to be false and the corroborative evidence favoured the first defendant, while the second relied on a prior factual and credit finding without the corroborative or expert evidence needed to support a perjury conviction. The car park incident, although involving an assault, arose from a chance encounter and mutual escalation between angry litigants, and was not shown to have been done to intimidate the plaintiff into abandoning proceedings or otherwise to interfere with the administration of justice; even if capable of contempt, it was not serious enough to warrant...

Court Disposition

Plaintiff's notices of motion dismissed; judgment to be provided to the Commissioner of Police; liberty to apply in relation to costs; exhibits retained until further order.

Orders

  • ["Plaintiff's notices of motion dismissed." 'A copy of this judgment to be provided to the Commissioner of Police for consideration of any safety and peace issues necessary for the wellbeing of the residents of Scotland Island.' 'Liberty to apply in relation to costs.' 'Exhibits retained until further order.']