Mohareb v State of New South Wales (No 2) [2024] NSWCA 69

Mohareb v State of New South Wales (No 2) [2024] NSWCA 69

The applicant established no basis for recusal, an oral hearing, or for setting aside or varying the 4 December 2023 orders. Prior adverse involvement by the same judges did not establish actual or apprehended bias. The application under UCPR r 36.15 failed because no misconduct or dishonourable conduct by the respondents was identified. The application under UCPR r 36.16(3A) failed because the applicant's complaints did not disclose oversight, inadvertence, relevant irregularity, misapprehension of evidence or submissions, or denial of a proper opportunity to be heard; rather, they reflected dissatisfaction with the reasoning and result. UCPR r 36.17 had no application. The notice of...

Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Notice of Motion to Set Aside or Vary Orders Refusing Leave to Appeal / Court of Appeal Motion Determined on the Papers
Outcome
The applicant's notice of motion filed 6 December 2023 was dismissed.
Legal Topics
['setting Aside or Varying Judgments or Orders Under UCPR Rr 36.15, 36.16 and 36.17' 'apprehended Bias and Recusal' 'procedural Fairness' 'costs']
['civil Procedure' 'appellate Procedure' 'courts and Judges'] ['setting Aside or Varying Judgments or Orders Under UCPR Rr 36.15, 36.16 and 36.17' 'apprehended Bias and Recusal' 'procedural Fairness' 'costs']

Case Brief

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Procedural Posture

Notice of Motion to Set Aside or Vary Orders Refusing Leave to Appeal / Court of Appeal Motion Determined on the Papers

Legal Issues

  1. 1 ['Whether the judges who determined the leave application should recuse themselves from determining the notice of motion because of actual or apprehended bias.' 'Whether the motion should be dealt with in open court or on the papers.' 'Whether the orders made on 4 December 2023 were made irregularly, illegally or against good faith under UCPR r 36.15.' 'Whether the Court should set aside or vary the orders under UCPR r 36.16(3A) because of alleged misapprehension of evidence or submissions or denial of a proper opportunity to be heard.' 'Whether UCPR r 36.17 had any application.' 'Whether costs should follow the event.']

Ratio Decidendi

The applicant established no basis for recusal, an oral hearing, or for setting aside or varying the 4 December 2023 orders. Prior adverse involvement by the same judges did not establish actual or apprehended bias. The application under UCPR r 36.15 failed because no misconduct or dishonourable conduct by the respondents was identified. The application under UCPR r 36.16(3A) failed because the applicant's complaints did not disclose oversight, inadvertence, relevant irregularity, misapprehension of evidence or submissions, or denial of a proper opportunity to be heard; rather, they reflected dissatisfaction with the reasoning and result. UCPR r 36.17 had no application. The notice of...

Court Disposition

The applicant's notice of motion filed 6 December 2023 was dismissed.

Orders

  • ["Dismiss the applicant's notice of motion filed 6 December 2023." "The applicant to pay the first respondent's and the second respondent's costs of the motion."]