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District Court 30 May 2017

Mohareb v Palmer (No. 4)

[2017] NSWDC 127

Public order & justice offences
PRACTICE AND PROCEDURE WHETHER EVIDENCE PROVES THE FALSITY APPLICATION DISMISSED CONTEMPT OF COURT

Citation: Mohareb v Palmer (No. 4) [2017] NSWDC 127
Court: District Court of New South Wales
Date: 30 May 2017
Judge: Gibson DCJ

Background

The plaintiff, a resident of Scotland Island in the Pittwater Estuary, had been engaged in a prolonged series of disputes with fellow residents and local ferry service personnel. Those disputes centred on his permanent parking of an unregistered vehicle at a mainland car park, his dogs running unleashed, and allegations of assault, vandalism and defamation running in multiple directions. The present judgment arose from two notices of motion filed against the first defendant, a fellow island resident against whom the plaintiff had previously brought defamation proceedings.

By the first motion, the plaintiff sought leave under s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute the first defendant for perjury, said to have been committed when giving evidence in the District Court on 5 June 2015. By the second motion, the plaintiff sought referral of the first defendant to the Supreme Court under s 203 of the District Court Act 1973 (NSW) for alleged contempt of court, arising from an assault that occurred at the Church Point car park in the course of the plaintiff's pursuit of Court of Appeal proceedings.

This was the plaintiff's third application under s 338(1)(c) and his first under s 203. Two prior perjury applications had been dismissed, and those dismissals had been upheld on appeal.

  • Whether sufficient evidence existed to support the grant of leave under s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute the first defendant for perjury
  • Whether the alleged assault by the first defendant in connection with the plaintiff's court proceedings amounted to contempt of court warranting referral to the Supreme Court under s 203 of the District Court Act 1973 (NSW)
  • Whether, in the exercise of discretion, referral of the matter to the Commissioner of Police was appropriate given the broader community tensions on Scotland Island

Decision

On the perjury application, Gibson DCJ dismissed the motion for absence of evidence to prove the falsity of the statements said to have been made on oath. This was the plaintiff's third attempt to obtain leave under s 338(1)(c), and the court found that the application suffered from the same deficiencies as its predecessors. The hearing was complicated by the fact that neither party addressed the relevant statutory elements, evidence was frequently led from the bar table, and both the plaintiff and the first defendant's representative made contradictory statements during the application.

On the contempt application, the court found that the relevant conduct did not satisfy the requirements for referral under s 203 of the District Court Act 1973 (NSW). The incident at the Church Point car park was characterised as a dispute between two angry litigants rather than conduct constituting contempt of court. The court also declined to exercise its discretion in favour of referral, even accepting the plaintiff's version of events.

Although both motions were dismissed, Gibson DCJ took the unusual step of ordering that a copy of the judgment be referred to the Commissioner of Police. The court noted a pattern of rising hostility within the close-knit island community, where multiple parties resided in proximity and depended on the same limited transport infrastructure. The referral was expressed as being for the benefit of the broader Scotland Island community and was not to be understood as an endorsement of any party's position in the litigation.

The court also noted that the history of these proceedings illustrated a broader need for legislative reform of nineteenth-century referral procedures, particularly around the costs of repeated applications, proportionality, and the impact of technology. No costs order was made, in light of the referral to the Commissioner, but liberty to apply was granted.

Orders Made

  • Both of the plaintiff's notices of motion dismissed
  • A copy of the 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

Key Takeaways

  • A leave application under s 338(1)(c) of the Crimes Act 1900 (NSW) to prosecute for perjury requires evidence capable of proving the falsity of the statements made on oath; an absence of such evidence is a sufficient basis for dismissal.
  • The District Court declined to refer an alleged assault by a defendant to the Supreme Court as contempt of court where the conduct was more properly characterised as a dispute between antagonistic litigants rather than an interference with the administration of justice.
  • Under s 203 of the District Court Act 1973 (NSW), the court retains a discretion as to whether to refer conduct to the Supreme Court for contempt determination, and that discretion may be exercised against referral even where the applicant's version of events is accepted.
  • Repeated applications under the same statutory provisions, presented without addressing the relevant legal elements or organising evidence in accordance with procedural rules, face significant difficulties regardless of the merits of the underlying grievance.
  • Gibson DCJ observed that the existing legislative framework governing referral procedures, costs in contempt applications, and technology-related evidence has significant gaps that may warrant legislative attention.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 56–62
- Crimes Act 1900 (NSW), ss 327 and 338(1)(c)
- District Court Act 1973 (NSW), s 203
- Uniform Civil Procedure Rules 2005 (NSW), r 31.28

Cases
- Ainsworth v Hanrahan (1991) 25 NSWLR 155
- Balogh v St Albans Crown Court [1975] QB 73
- Bar-Mordecai v Hillston [2003] NSWSC 1269
- Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
- Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503
- Gregory v Philip Morris Ltd (1987) 74 ALR 300
- Harkianakis v Skalkos (1997) 42 NSWLR 22
- Hinch v Attorney-General (Vic) (1987) 164 CLR 15
- Lin v Borrowdale [2011] NSWCA 65
- Mohareb v Kelso [2017] NSWCA 98
- Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208
- Mohareb v Palmer [2015] NSWDC 134; [2015] NSWCA 369; [2016] NSWDC 38; [2016] NSWCA 378
- Mohareb v Palmer (No 2) [2015] NSWDC 141
- Moss v McIlveen [2011] NSWCA 77
- Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435
- Powell v In De Braekt [2007] WASC 165