Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mohareb v Office of the Director of Public Prosecutions (NSW) [2024] NSWCA 68 Hearing dates: 25 March 2024 Date of orders: 27 March 2024 Decision date: 27 March 2024 Before: Griffiths AJA Decision: (1) The applicant have leave to amend the notice of motion filed on 7 March 2024 so as to seek an order under r 10.14(3) of the Uniform Civil Procedural Rules 2005 (NSW). (2) Order under r 10.14(3) that the following documents be taken to have been served on Mr Alexander Edward Kelso on 22 February 2024. (a) The documents are the White Book, which includes the: (i) summons seeking leave to appeal filed on 14 November 2023; (ii) draft notice of appeal; and (iii) summary of argument. (3) Order that by no later than 4.00pm on Thursday 28 March 2024, the applicant file an amended notice of motion in accordance with paragraph 4 of these reasons for judgment. (4) Order that by no later than 5.00pm on Tuesday 2 April 2024: (a) The applicant serve on Mr Kelso: (i) the amended notice of motion referred to in order 3 above; (ii) a copy of these reasons for judgment and associated orders; and (iii) notification that the summons seeking leave to appeal and the balance of the amended notice of motion are listed for hearing by the Court of Appeal at 10.15am on 22 April 2024. (b) The documents referred to in (a) immediately above are to be served in the following manner: (i) by email to Mr Kelso's email address as identified in Exhibit 1; and (ii) by express post to be sent to: (A) Mr Kelso's Narrabeen address; (B) the business address of Champagne Sailing Sydney (15 Amiens Rd, Clontarf NSW 2093) marked for the attention of Mr Alexander Edward Kelso; and (C) Clontarf Marina (1 Sandy Bay Rd, Clontarf NSW 2093) marked for the attention of Mr Alexander Edward Kelso. (5) The costs of the hearing of 25 March 2024 are reserved. Catchwords: CIVIL PROCEDURE – Service – application for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) – where not practicable to serve originating process and related documents personally CONTEMPT – Arrest - application for Court to issue warrant for arrest of contemnor under Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) – where application not served either personally or otherwise – application to be listed for subsequent hearing Legislation Cited: Supreme Court Act 1970 (NSW) s 48 Supreme Court Rules 1970 (NSW) Pt 55, r 10 Uniform Civil Procedure Rules 2005 (NSW) rr 10.14, 10.20(2)(a) Cases Cited: Mohareb v Kelso [2020] NSWCA 105 Mohareb v Kelso [2020] NSWSC 1402 Mohareb v Kelso [2023] NSWSC 20 Mohareb v Kelso [2023] NSWSC 826 Mohareb v Kelso (Supreme Court (NSW), Beech-Jones J, 13 December 2022, unrep) Category: Procedural rulings Parties: Nader Mohareb (Applicant) Office of the DPP (NSW) (Respondent) Representation: Counsel: N Mohareb (Litigant-in-person) R Lee (Respondent)

Solicitors: Crown Solicitor's Office (NSW) (Respondent) File Number(s): 2023/298165 Publication restriction: Nil. Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Date of Decision: 24 August 2023 Before: Sweeney J File Number(s): 2020/174984

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT 1. HIS HONOUR: The applicant (Mr Mohareb) moves on a notice of motion filed on 7 March 2024 in the context of proceedings which are on foot in this Court, being Nader Mohareb v Office of the Director of Public Prosecutions NSW (2023/298165). Those proceedings involve a summons seeking leave to appeal which was filed on 14 November 2023 (the summons). The summons is listed to be heard on 22 April 2024. I will return to describe those proceedings in more detail shortly. 2. In the notice of motion, Mr Mohareb seeks (not for the first time) an order pursuant to Pt 55 r 10 of the Supreme Court Rules 1970 (NSW) (Supreme Court Rules), namely that a warrant be issued for the arrest of Mr Alexander Edward Kelso. In support of the motion, Mr Mohareb relied upon four affidavits by him dated 28 June 2023, 9 August 2023, 22 February 2024 and 7 March 2024. He also relied upon extracts from the summary of argument filed by him in support of the summons and he tendered (a) a document dated 15 August 2017 which records the then email address of Mr Kelso (Exhibit 1) and (b) two annexures to an affidavit affirmed by him on 29 May 2020 (Exhibit 2). 3. Mr Mohareb represented himself at the hearing of the motion. The DPP was represented by Mr Lee. 4. During the course of that hearing, it became apparent that Mr Mohareb had been unsuccessful in his attempts to achieve personal service of the summons and related documents on Mr Kelso. In those circumstances, Mr Mohareb sought to amend his notice of motion so as to add an order for substituted service under r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He relied on the evidence of his attempts to serve the summons and related documents on Mr Kelso. The DPP did not oppose the amendment. The Court granted Mr Mohareb leave to amend the motion as sought by him so as to add an application for an order under r 10.14(3) to serve the summons and related documents on Mr Kelso. 5. In circumstances where Mr Mohareb had made no attempt to serve the notice of motion and supporting documents on Mr Kelso, the Court indicated that it could not deal with that part of the notice of motion relating to the application for an arrest warrant and that this part should be dealt with by the Court when it hears Mr Kelso's summons on 22 April 2024. 6. It is desirable to outline in broad terms the complicated and protracted history of the litigation involving Mr Mohareb and Mr Kelso. In doing so, I rely primarily on a chronology which is attached to Mr Mohareb's affidavit dated 7 March 2024.

A brief and selected summary of the proceedings 1. In July 2015, Mr Mohareb commenced civil proceedings in the District Court against Mr Kelso. The proceedings related to events which had occurred on Scotland Island, where both Mr Mohareb and Mr Kelso lived. 2. On 27 November 2017, Mr Mohareb unsuccessfully sought to adjourn the District Court proceedings. He promptly filed an application for leave to appeal and a notice of motion in this Court. This caused the District Court proceedings to be adjourned for mention on 5 December 2017. 3. On 4 December 2017, Mr Mohareb was seriously assaulted by Mr Kelso with a baseball bat. His jaw was fractured and his face was severely bruised. Mr Kelso pleaded guilty to a charge of assault with intent to cause grievous bodily harm. On 17 April 2020, Mr Kelso was sentenced by Norrish QC DCJ to an Intensive Correction Order for one year and 10 months' duration, with a condition that he perform 400 hours of community service. A Crown appeal against that sentence was subsequently abandoned. 4. On 1 February 2018, Mr Mohareb filed a notice of motion in the Court of Appeal charging Mr Kelso with criminal contempt on the basis that the assault by Mr Kelso was intended to discourage him from prosecuting the civil proceedings against Mr Kelso in the District Court. The motion was heard by Simpson AJA on 1 June 2020. On 5 June 2020, her Honour published reasons for judgment in Mohareb v Kelso [2020] NSWCA 105. Based on Mr Mohareb's affidavit of service dated 29 May 2020, her Honour accepted that the seven respondents, including Mr Kelso, had been given appropriate notice of the motion. But her Honour ruled that the motion was appropriately heard in the Common Law Division and did not fall within the ambit of s 48 of the Supreme Court Act 1970 (NSW) (which deals with the assignment of proceedings for contempt to the Court of Appeal). Concluding that Mr Mohareb's proceedings did not fall within any exception in s 48, her Honour ordered that the motion dated 1 February 2018 be remitted to the Common Law Division. 5. During the course of the hearing before Simpson AJA, Mr Mohareb raised the issue of an order under Pt 55 r 10 of the Supreme Court Rules for an arrest warrant to be issued against Mr Kelso. Simpson AJA said that it was too early for the Court to make such an order. 6. On or about 12 June 2020, the 1 February 2018 motion was filed as a summons in the Common Law Division. Thereafter, there have been multiple applications and hearings, both before the Common Law Registrar and various judges of the Division. It is unnecessary to detail those proceedings (or the various appeals arising therefrom). It is sufficient to note that the proceedings in the Common Law Division resulted in separate judgments by Ierace J on 16 October 2020 (see Mohareb v Kelso [2020] NSWSC 1402); Beech-Jones CJ at CL on 13 December 2022 (Mohareb v Kelso (delivered ex tempore, unrep.); Bellew J on 7 February 2023 (see Mohareb v Kelso [2023] NSWSC 20); and Campbell J on 14 July 2023 (Mohareb v Kelso [2023] NSWSC 826). 7. It is necessary, however, to say something more regarding proceedings in the Common Law Division before Sweeney J, as these are the proceedings which give rise to the summons now in this Court. On 24 August 2023, Sweeney J heard a notice of motion filed on 5 May 2023 by the DPP. The motion sought to set aside the balance of a subpoena dated 8 March 2023 issued to the DPP. Sweeney J also granted leave to the DPP to file in Court a notice of motion seeking to set aside a notice to produce which had been issued by Mr Mohareb. During the course of the hearing, Mr Mohareb said that he would like to seek an order pursuant to Pt 55 r 10 of the Supreme Court Rules, seeking an arrest warrant against Mr Kelso. Her Honour stated that she would not deal with that matter on that day because she was only dealing with the DPP's notices of motion. 8. Sweeney J delivered ex tempore reasons for judgment on 24 August 2023 explaining why she upheld the DPP's applications to have part of the subpoena and the notice to produce set aside as lacking any legitimate forensic purpose. The reasons for judgment are silent on the issue of an arrest warrant. 9. It is convenient now to describe in a little more detail the pending proceedings in this Court.

Mr Mohareb's summons in this Court 1. As noted above, on 14 November 2023, Mr Mohareb filed the summons. The orders sought are as follows: 1 Grant Leave to the Applicant to appeal from the whole of the decision below. 2 Set aside the primary judge's orders setting aside: a. The balance of the Applicant's subpoena to the DPP; and, b. The whole of the Applicant's notices to produce to the DPP. 3 In their place orders: a. For the DPP to comply with: (i) The balance of the Applicant's subpoena to the DPP; and with, (ii) The whole of the Applicant's notices to produce to the DPP which were set aside by the primary judge. b. For the Applicant's costs/disbursements, in this Court and in the Court below. 4 Order pursuant to Part 55 r10 of the Supreme Court Rules, for the issuance of a warrant for the arrest of Alexander Edward Kelso. 5 Order: a. Either, for the Applicant to be charged-with & tried-for Contempt of Court. b. Or, in the alternative, that the Applicant's associated allegations, impugning the conduct of a number of judicial officers, be referred, to the ICAC, to be investigated in accordance with the criteria enumerated at: https://www.icac.nsw.gov.au/reporting/how-and-what-to-report/the-icacs-jurisdiction. 1. The draft notice of appeal not only challenges Sweeney J's decisions relating to the subpoena and notice to produce but also challenges what is described as her Honour's "refusal" to make an order under Pt 55 r 10 of the Supreme Court Rules. Paragraph 2 of the draft notice of appeal states: 2. The primary judge's refusal to make an order pursuant to Part 55 r10 of the Supreme Court Rules (NSW), for the issuance of a warrant for the arrest of Alexander Edward Kelso – as per Lines [36-50] Page (17) & Lines [1-45] Page (18) of the transcript of the 24th August 2023 hearing – on the basis that the Applicant had not filed a formal application by which to seek such an order, was: a. Despite the primary judge having accepted to hear & determine a similarly informal application which was put forward by the DPP; b. Despite the evidence of the Applicant's 28th June 2023 affidavit of service, which was before the primary judge, and which documented the fact that Alexander Edward Kelso had deliberately proceeded to abscond and to withdraw himself from the jurisdiction of the Court; c. And despite the fact that the Applicant had repeatedly, since 1st June 2020, sought such an order, before several judges; 1. As noted above, on 7 March 2024, Mr Mohareb filed a notice of motion in this Court seeking similar relief to that outlined in para 4 of the summons. At the hearing before me, he said that he took this course because he was concerned that there would be too little time for his application to be heard in the context of his leave to appeal application.

Mr Mohareb's recent attempts to serve documents on Mr Kelso 1. It is unnecessary to summarise all the evidence regarding Mr Mohareb's attempts over many years to serve documents on Mr Kelso. I shall primarily focus on the more recent relevant material. 2. I will now summarise the evidence of Mr Mohareb's attempts to serve various documents on Mr Kelso relating to the summons, which is contained in his affidavits dated 22 February 2024 and 7 March 2024: 1. On 25 January 2024, he emailed a copy of the White Folder (including the summons, draft notice of appeal and summary of argument) to Mr Kelso at the same email address he had used previously. He also advised Mr Kelso that the matter was listed for directions before the Registrar on 29 January 2024, and that it would be in his interests to attend either personally or by a representative. 2. On 12 February 2024, Mr Mohareb sent to Mr Kelso by express post a copy of the summons to the same residential address in Narrabeen to which he had served documents as per his 28 June 2023 affidavit of service, which Campbell J had found to constitute appropriate notice. 3. On 19 February 2024, the express post envelope was returned to Mr Mohareb with a handwritten annotation "Not At This Address". 4. Mr Mohareb retained a professional process server. The process server (Mr John Cullinan) attempted to serve the summons and hearing notice on Mr Kelso by attending at his Narrabeen residential address on two occasions (4 February 2024 and 12 February 2024), but received no reply when he rang the intercom. Mr Cullinan made a third attempt at service at the Narrabeen address on 20 February 2024 and was told over the intercom that no one of the name Alexander Kelso lived at that address. 5. On 21 February 2024, Mr Mohareb contacted by mobile telephone what he understood to be Mr Kelso's last known working address, which is that of a business called "Champagne Sailing Sydney" and is located in Clontarf. He said that the owner of the business answered his call. She confirmed that Mr Kelso was still working there. He told her he had some court documents to serve on Mr Kelso and asked if he could bring them to the office and leave them there to be passed on to Mr Kelso. The owner told him that it would be better if he left the documents at the Clontarf Marina which is where the business operated from, and any of the staff there could pass them on to Mr Kelso. 6. On 22 February 2024, Mr Mohareb went to Clontarf Marina and met a man called "Ian" who said he was an administrator of the Marina. Mr Mohareb told him that he had some documents to deliver to Mr Kelso. Mr Mohareb said that Ian confirmed that Mr Kelso worked with Champagne Sailing but that he was not at work at the time. Ian told Mr Mohareb that he could leave the documents at the Marina and he would pass them to Mr Kelso. Mr Mohareb left an envelope containing a copy of the sealed summons. The envelope was marked "To the Attention of Alexander Edward Kelso – Champagne Sailing Sydney/Clontarf Marina". Mr Mohareb asked Ian that he could be told when the envelope was given to Mr Kelso. Ian agreed to do so, and Mr Mohareb left his name and number with him for that purpose. He said that Ian told him that Mr Kelso was not there all the time and mainly worked on weekends such that Mr Mohareb should expect a call within a week. 7. Having not heard from Ian as at 28 February 2024, Mr Mohareb made several calls to Clontarf Marina and left several messages asking that Ian call him back. Ian did not return his calls on that day. He finally spoke with Ian on 29 February 2024 when Mr Mohareb again called Clontarf Marina. He said he introduced himself to Ian and said that he was following up on the envelope. He said that Ian told him that the envelope had "disappeared from my desk" and that he thought that Mr Mohareb must have come and retrieved it. When Mr Mohareb said that he had not done that, Ian repeated that the envelope had disappeared. He said that he did not know what had happened to it. When Mr Mohareb offered to bring over a replacement and leave it to be passed onto Mr Kelso, Ian said "that's something between you and him; you can deal directly with him". When Mr Mohareb told Ian that he would therefore have to tell the Court that Ian was "covering up for a criminal", Ian said he did not know what he was talking about. The call was terminated by Ian shortly thereafter. Mr Mohareb said that soon after the call ended, his two mobile numbers each received a call from the Clontarf Marina landline number but the calls each only lasted two rings and stopped before he could answer. One of the two mobile numbers was the number which Mr Mohareb had called from and the other was the number he had left with Ian a week earlier. 1. At the hearing before me on 25 March 2024, after Mr Lee submitted that the Court should attach weight to the fact that Mr Mohareb had attempted to serve Mr Kelso only once at his workplace. In reply, Mr Mohareb said from the Bar table that he had also tried to call Clontarf Marina on 7 March 2024 and that when he spoke again to Ian, he acted differently from before. He said that he subsequently sent an email to Clontarf Marina, enclosing a copy of the notice of motion filed on 7 March 2024 and his affidavits dated 22 February 2024 and 7 March 2024. He said that he copied his email to the DPP. He said that he also sent a copy of the email to Mr Kelso personally and also to Champagne Sailing Sydney. Mr Mohareb did not have a copy of those emails in Court. Accordingly, they cannot be taken into account.

Consideration and determination 1. The subject of substituted service is dealt with in UCPR r 10.14, which states: 10.14 Substituted and informal service generally (1) If a document that is required or permitted to be served on a person in connection with any proceedings— (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law, the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned. (2) An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time. (3) If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. (3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes— (a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and (b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail). (4) Service in accordance with this rule is taken to constitute personal service. 1. Paragraph (3) makes clear that, even where an order has not been made under the rule, if steps have been taken for the purpose of bringing a document to the notice of the person concerned, the Court has the power to direct that the document be taken to have been served on that person on a date specified in the order. In making such an order, I am conscious of UCPR r 10.20(2)(a) and the requirement of personal service of an originating process. 2. It is also to be noted that para (3A) requires an order under the rule to be supported by an affidavit by the applicant, which includes the matters specified therein. I am satisfied that this has occurred here. 3. Having regard to the summary above of Mr Mohareb's evidence and the steps taken by him to serve the summons and related documents on Mr Kelso, I am satisfied that appropriate steps have been taken to give notice to Mr Kelso. This includes emailing the documents to an email address for Mr Kelso in circumstances where: 1. Mr Kelso has responded to earlier correspondence sent to him at that address (Exhibit 1); and 2. in a report dated 1 June 2023, a private investigator (SWA Recovery & Investigation Group) informed Mr Mohareb that that email address was "valid and current" at least at that time. 1. I do not accept the DPP's submission that Mr Mohareb has not established for the purposes of UCPR r 10.14 that the documents cannot "practicably" be served on Mr Kelso because only one attempt has been made to serve the documents on Mr Kelso's work address. I am satisfied that Mr Mohareb has taken all reasonable available steps to serve the documents on Mr Kelso by various means at his work address, his last known residential address and his email address. 2. For what it is worth, I also note that Simpson AJA and Campbell J were both satisfied that similar steps taken by Mr Mohareb to serve earlier documents on Mr Kelso indicated that he had been given appropriate notice.

Conclusion 1. For all these reasons, I am satisfied that this is an appropriate case to make an order under r 10.14(3) of the UCPR. 2. I will also make further orders requiring Mr Mohareb promptly to serve a copy of these reasons for judgment and related materials on Mr Kelso. 3. Finally, as noted above, in circumstances where Mr Mohareb adduced no evidence of any attempt by him to serve on Mr Kelso a copy of the notice of motion filed on 7 March 2024 and related affidavits, it is inappropriate for me to rule on his application concerning the issue of an arrest warrant under Pt 55 r 10 of the Supreme Court Rules. Assuming that Mr Mohareb complies with the orders I will make regarding service of those materials, this part of the motion may be heard by the Court on 22 April 2024. Presumably one of the matters which the Court will address on that occasion is the appropriateness of Mr Mohareb seeking in this Court an order for the arrest of Mr Kelso, as opposed to having the matter heard and determined in the Common Law Division, as ordered by Simpson AJA. This will include consideration of whether there is an arguable appealable error in respect of Sweeney J's refusal to determine his application in the circumstances which existed at that time. 4. The costs of today's hearing are reserved.

Orders 1. The orders are as follows: 1. The applicant have leave to amend the notice of motion filed on 7 March 2024 so as to seek an order under r 10.14(3) of the Uniform Civil Procedural Rules 2005 (NSW). 2. Order under r 10.14(3) that the following documents be taken to have been served on Mr Alexander Edward Kelso on 22 February 2024. 1. The documents are the White Book, which includes the: 1. summons seeking leave to appeal filed on 14 November 2023; 2. draft notice of appeal; and 3. summary of argument. 1. Order that by no later than 4.00pm on Thursday 28 March 2024, the applicant file an amended notice of motion in accordance with paragraph 4 of these reasons for judgment. 2. Order that by no later than 5.00pm on Tuesday 2 April 2024: 1. The applicant serve on Mr Kelso: 1. the amended notice of motion referred to in order 3 above; 2. a copy of these reasons for judgment and associated orders; and 3. notification that the summons seeking leave to appeal and the balance of the amended notice of motion are listed for hearing by the Court of Appeal at 10.15am on 22 April 2024. 1. The documents referred to in (a) immediately above are to be served in the following manner: 1. by email to Mr Kelso's email address as identified in Exhibit 1; and 2. by express post to be sent to: 1. Mr Kelso's Narrabeen address; 2. the business address of Champagne Sailing Sydney (15 Amiens Rd, Clontarf NSW 2093) marked for the attention of Mr Alexander Edward Kelso; and 3. Clontarf Marina (1 Sandy Bay Rd, Clontarf NSW 2093) marked for the attention of Mr Alexander Edward Kelso. 1. The costs of the hearing dated 25 March 2024 are reserved.

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Amendments 27 March 2024 - Changed hearing date. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2024