Mohareb v Kelso

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.