Mohareb v Kelso

Case [2017] NSWCA 98

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Mohareb v Kelso [2017] NSWCA 98
Hearing dates: 26 April 2017
Decision date: 12 May 2017
Before: Basten JA at [1];
Simpson JA at [27]
Decision:

(1)   Refuse leave to appeal from the judgment in the District Court of 12 September 2016.

 (2)   Order that the applicant pay the respondent’s costs (as a litigant in person), and the costs of the parties sought to be joined, of the application.
Catchwords:

APPEAL – application for leave to appeal – interlocutory orders – application to add defendants – whether arguable cause of action – application to add further fresh claims – questions of practice and procedure – whether proposed new pleadings defective – whether error on part of trial judge – whether refusal of leave would cause substantial injustice

  TORTS – duty of care – liability for criminal activities of third party – whether arguable that business directly liable for criminal acts of employee or independent contractor in circumstances where company had knowledge of criminal tendencies and created opportunity for third party to provide services to members of the public – whether claim reasonably arguable
Legislation Cited: Civil Procedure Act 2005 (NSW), s 64
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 14.7, 51.4
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] 75 NSWLR 649; [2009] NSWCA 258
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
House v The King (1936) 55 CLR 499; [1936] HCA 40
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Prince Alfred College Inc v ADC [2016] HCA 37; 90 ALJR 1085
Smith v Leurs (1945) 70 CLR 256
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 [2002] NSWCA 82]
The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Category:Principal judgment
Parties: Nader Mohareb (Applicant)
Alexander Edward Kelso (Respondent)
Representation:

Counsel:
Applicant self-represented
Respondent self-represented
Ms I J King (Proposed defendants)

  Solicitors:
Applicant self-represented
Coyne Legal (Proposed defendants)
File Number(s): 2016/301624
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Citation:
[2016] NSWDC 208
Date of Decision:
12 September 2016
Before:
Gibson DCJ
File Number(s):
2015/201139; 2015/359339

Judgment

  1. BASTEN JA: The applicant, Nader Mohareb, is the plaintiff in civil proceedings in the District Court in which he has alleged numerous acts of harassment committed against him and damaging his property, allegedly committed by the respondent, Alexander Edward Kelso. Of 14 acts said to have been committed between April 2013 and May 2016, the vast majority involve deliberate damage to the applicant’s boat, car and other vehicles. These were identified by Gibson DCJ…

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AGLC
Mohareb v Kelso [2017] NSWCA 98
Case
[2017] NSWCA 98
Decision Date

CaseChat Overview and Summary

Mohareb v Kelso concerned an application for leave to appeal interlocutory orders made by the District Court of New South Wales. The applicant sought to add further defendants to the proceedings and to introduce fresh claims. The primary dispute revolved around whether the proposed new pleadings disclosed an arguable cause of action, particularly in tort, and whether the refusal of leave to amend would cause substantial injustice.

The Court of Appeal was required to determine whether the applicant had an arguable cause of action against the proposed defendants, specifically concerning liability for the criminal activities of a third party. This involved considering whether a business could be directly liable for the criminal acts of an employee or independent contractor, particularly where the business allegedly had knowledge of criminal tendencies and facilitated the opportunity for the third party to interact with members of the public. The court also had to assess whether the proposed new pleadings were defective and whether there had been an error on the part of the trial judge in refusing the amendments.

Basten and Simpson JJA considered the principles governing applications for leave to appeal interlocutory orders and the requirements for amending pleadings to introduce fresh claims. They assessed whether the proposed claims were reasonably arguable, applying principles relating to duty of care and liability for the criminal acts of others. The court found that the proposed claims did not meet the threshold for granting leave to appeal.

Consequently, the Court of Appeal refused leave to appeal from the judgment of the District Court dated 12 September 2016. The applicant was ordered to pay the costs of the respondent, who appeared as a litigant in person, and the costs of the parties sought to be joined.

Orders

Orders of the court

(1) Refuse leave to appeal from the judgment in the District Court of 12 September 2016.

(2) Order that the applicant pay the respondent’s costs (as a litigant in person), and the costs of the parties sought to be joined, of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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