Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. THE COURT: The applicant, Nader Mohareb, seeks leave to appeal from the orders of Weber SC DCJ, made on 5 July 2024, dismissing two notices of motion that the applicant filed in proceedings commenced in 2018 against the first respondent, the State of NSW (the State), and the fourth respondent, Northern Beaches Council (the Council). His Honour described the notices of motion at the outset of his reasons as follows:

"[1] I have before me two notices of motion filed by the plaintiff. The first in time is the Notice of Motion of 9 November 2022. The only order pressed in that motion is order 5 to the effect that the proceedings referred to in paragraphs 1 to 4 of the motion be heard by a jury. The second Notice of Motion is dated 1 March 2024 and seeks leave to amend the statement of claim in matter 2018/00223230 to add pleadings against:

(1) New South Wales Police (the Police)

(2) the Attorney General

(3) the Office of the Director of Public Prosecutions (ODPP); and

(4) Nine entertainment Holdings Pty Ltd ('Nine')

[2] The motion also seeks to 'reinstate 'parts of a pleading which the plaintiff alleges Abadee DCJ had ordered be struck out. The three parties opposing the orders sought are the State of New South Wales, the Northern Beaches Council, and Nine."

2. As his Honour's decision was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). The draft notice of appeal contains ten proposed grounds of appeal, which respectively take issue with his Honour's conclusions on each prayer for relief that the applicant pressed in the two notices of motion, as well as alleging, in ground 1, errors described as "[c]ommon to the whole of the judgment's findings". The respondents that took an active role in the hearing in the court below, being the State (on behalf of NSW Police and the Office of the Director of Public Prosecutions (ODPP)), the Council, and Nine Entertainment Co Holdings Ltd (Nine), opposed the grant of leave. The remaining respondents, Alexander Kelso, Vanessa Kelso and Taylor Booth, are involved in other District Court proceedings to which we refer below and were only peripherally involved in the applicant's notices of motion that are the subject of this appeal. They did not file an appearance in this Court.

3. Ordinarily, leave to appeal is granted in matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [33] and The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. It is well-settled that this Court exercises particular caution in granting leave to appeal from an interlocutory decision on a matter of practice and procedure: Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. Referring to the leave requirement in s 101(2)(e) in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371, Basten JA stated at [9]:

"... A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of the court's workload and the impact of a particular practice or procedure on other litigants. Again echoing modern concerns, Jordan CJ in Will of Gilbert abjured an approach which would 'in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal.'"

4. For the reasons outlined below, no question of principle or of general importance arises on the present application for leave to appeal; and there is no demonstrated injustice. Leave to appeal should be refused.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198117a480fea489737b6eda)

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