Mohareb v Kelso; Mohareb v Booth

[2016] NSWDC 208

District Court

New South Wales

Medium Neutral Citation:	Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208
Hearing dates:	8 September 2016
Date of orders:	12 September 2016
Decision date:	12 September 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Notice of Motion filed by the defendants in proceedings 2015/201139 and 2015/359339 for a stay of proceedings under s 67 Civil Procedure Act 2005 (NSW) dismissed, with no order as to costs. (2) Plaintiff’s application in proceedings 2015/201139 to add the named persons as second to sixth defendants dismissed. (3) Plaintiff’s application in proceedings 2015/201139 to amend the statement of claim dismissed. (4) Plaintiff’s application for proceedings 2015/359339 to be heard before proceedings 2015/201139 dismissed. (5) Plaintiff’s application in proceedings 2015/201139 for access to documents from the NSW Police and Mr van Mierlo (the subject of objections recorded by the Registrar) dismissed. (6) The plaintiff to pay the defendants’ costs in each of proceedings 2015/359339 and 2015/201139, save for the defendants’ application for a stay, with liberty to apply. (7) Proceedings stood over for further directions to the Defamation List on 20 October 2016, on which date the parties should show cause as to why proceedings 2015/359339 and 2015/201139 should not be transferred to the General List.
Catchwords:	TORT – claim for damages for assault and trespass to goods against two plaintiffs in different proceedings – application by defendants for stay in both proceedings on the basis that the plaintiff is the defendant in proceedings under the Vexatious Proceedings Act 2008 (NSW) which are shortly to be heard – application refused – application by plaintiff to amend statement of claim in proceedings 2015/201139 and to join five new parties on the basis of negligence and/or vicarious liability for the defendant’s acts in that they were asserted to be his employers – whether defendant’s acts related to his employment – whether claims sufficiently pleaded – application to join additional parties and amend statement of claim refused – application for one of two proceedings travelling together to be heard first – applications dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 61, 67, 73 Crimes Act 1900 (NSW) s 318 Evidence Act 1995 (NSW) s 91 Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 Ballina Shire Council v Ringland [1999] NSWSC 11 Brockway v Pando (2000) 22 WAR 405 Deatons Pty Ltd v Flew (1949) 79 CLR 370 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gordon v Tamworth Jockey Club Inc. (2003) Aust Torts Reports 81-698 McGuirk v University of New South Wales [2011] NSWCA 179 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Mohareb v Palmer [2015] NSWDC 134 Mohareb v Palmer (No 2) [2015] NSWDC 141 Mohareb v Palmer (No 3) [2016] NSWDC 38 Mohareb v Palmer [2015] NSWCA 369 Nau v Kemp (2010) 77 NSWLR 687 New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511 Pyrenees Shire Council v Day (1998) 192 CLR 330 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 Viavattene v Attorney-General [2015] NSWCA 44
Texts Cited:	-
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb Defendant: Alexander Edward Kelso (2015/201139) Defendant: Taylor Booth (2015/359339)
Representation:	Counsel: Plaintiff: In person Defendants in both proceedings: Ms K Vanderfield (solicitor)   Solicitors: Plaintiff: In person Defendants: Coyne Legal
File Number(s):	2015/201139; 2015/359339
Publication restriction:	None

Judgment

The applications before the court

1. These are proceedings brought separately by the plaintiff, Mr Nader Mohareb (‘the plaintiff”), against two defendants, Alexander Edward Kelso (proceedings 2015/201139) and Taylor Booth (proceedings 2015/359339). I have referred to each of these defendants by name in this judgment to avoid the confusion which would occur if I called them both “the defendant”, but have called Mr Mohareb “the plaintiff” throughout.

2. The parties bring applications before the court in relation to both proceedings as follows:

1. The plaintiff seeks the following orders:

1. Leave to amend the statement of claim in his proceedings against Mr Kelso (2015/201139) to add five additional defendants, as follows:

1. Saratoga Marine Pty Ltd as second defendant;

2. John Alexander Kelso as third defendant;

3. Leetec Pty Limited as fourth defendant;

4. Laurence Geoffrey Leeson as fifth defendant; and

5. Roderick Gerrard Smith as sixth defendant;

2. Leave to amend the statement of claim against Mr Kelso to include further claims of trespass to property and assault;

3. An order for the proceedings against Mr Kelso to be heard after his claims against Mr Booth (2015/359339); and

4. Access to material produced by NSW Police on 15 December 2015 and by Hubert van Mierlo on 27 April 2016 in proceedings 2015/201139.

2. The defendants, by Notice of Motion filed on 27 July 2016, seek a stay of both proceedings under s 67 Civil Procedure Act 2005 (NSW) until an application brought by the New South Wales Attorney-General against the plaintiff under the Vexatious Proceedings Act 2008 (NSW), which is listed for hearing on 14 October 2016, is finalised (including any appeal from the judgment in those proceedings).

3. The plaintiff’s claims in both these proceedings follow other proceedings commenced in 2014 against other parties. There is substantial overlap between the subject matter of these four proceedings. All are commenced against the plaintiff’s neighbours or fellow residents of Scotland Island, a residential area on the Central Coast accessible by boat, and include claims for assault, trespass to goods and/or defamation. Two of the claims have been concluded but the two claims the subject of these applications are at the stage of witness statements being prepared. A summary of each of these claims, in date order, is set out below.

1. Mohareb v Kelso, Saratoga Marine Pty Ltd and Saratoga Integration Pty Ltd (2014/207569)

4. The plaintiff commenced proceedings against Mr John Alexander Kelso, Saratoga Marine Pty Ltd and Saratoga Integration Pty Ltd on 14 July 2014, seeking orders that these defendants “cease and desist from any further harassment, threats, intimidation, bullying and vandalising of the plaintiff’s property and belongings” and an order that the defendants compensate the plaintiff in the sum of $20,000 (“or as the Court deems appropriate”).

5. The claim asserts that Mr John Alexander Kelso (who is the father of Mr Alexander Edward Kelso, the plaintiff in proceedings 2015/201139, and who is hereafter referred to as “Mr Kelso Senior”, as well as being the proposed third defendant in these proceedings) repeatedly engaged in these acts and had indicated his intention to the plaintiff to continue, but did not provide particulars of what these acts were.

6. The proceedings against Mr Kelso Senior and Saratoga Marine Pty Ltd have since been terminated, with a costs order made against the plaintiff. Ms Vanderfield, who acted for Mr Kelso Senior and Saratoga Marine Pty Ltd in those proceedings as well as for the defendant in these proceedings, tells me from the bar table that a bill of approximately $12,000 has been sent to the plaintiff but that this has not been paid.

7. The relevance of these proceedings to the current application is:

1. The same claims of damage were made against Mr Kelso Senior as against Mr Kelso;

2. Mr Kelso Senior and one of the other proposed additional defendants in proceedings 2015/201139 were also the defendants in these earlier proceedings, which I understand to have been terminated (although the basis for that termination was not stated); and

3. Ms Vanderfield relies upon Mr Mohareb’s failure to pay the memorandum of costs sent to him following the termination of those proceedings in support of her application for a stay of proceedings under s 67 Civil Procedure Act.

2. Mohareb v Palmer (2014/243522)

8. The plaintiff commenced proceedings for defamation and assault against a Mr and Mrs Palmer (2014/243522) on 19 August 2014, the subsequent history of which is set out in my judgments Mohareb v Palmer [2015] NSWDC 134, Mohareb v Palmer (No 2) [2015] NSWDC 141, Mohareb v Palmer (No 3) [2016] NSWDC 38. Those proceedings were later the subject of an attempt at settlement which, when it broke down, resulted in an application under s 73 Civil Procedure Act 2005 (NSW). As those judgments set out, there were disagreements about whether Mr and Mrs Palmer had complied with the terms of a settlement and after the defendants brought an application under s 73, I instead struck out the proceedings under s 61 Civil Procedure Act.

9. The Court of Appeal dismissed Mr Mohareb’s appeal from the second of these judgments (Mohareb v Palmer [2015] NSWCA 369) but an appeal from the third of the judgments listed above (in relation to Mr Mohareb’s second application for leave to bring criminal proceedings against Mr Palmer pursuant to s 318 Crimes Act 1900 (NSW)) has been lodged.

10. The relevance of the proceedings against Mr and Mrs Palmer as background to the proceedings the subject of this application is:

1. The claim for defamation against them (namely the putting up of posters on sites in Scotland Island and the posting of such a poster on the Scotland Island Facebook page) is the same as the claim for defamation in these proceedings.

2. There were allegations by the plaintiff that Mr Palmer assaulted him after disputes of the same nature as the claims brought in these proceedings (namely demands that the plaintiff put his dogs on a leash, which are asserted to have escalated to acts of aggression).

3. The plaintiff’s witness statements in the proceedings against Mr Kelso and Mr Booth both set out that he will call Mr and Mrs Palmer under subpoena as witnesses, although Mr Moharebs appeal against my refusal to permit him to bring a private prosecution against Mr Palmer is still to be heard. It should be noted that he describes Mr and Mrs Palmer as witnesses he will be “calling upon for cross-examination” (Statement in Mohareb v Kelso, paragraph 33; see also paragraph 44) as opposed to being called to give evidence in chief.

3. Mohareb v Kelso (2015/201139)

11. On 9 July 2015 the plaintiff commenced proceedings 2015/201139 against Alexander Edward Kelso (“Mr Kelso”) who is, as is noted above, the son of John Alexander Kelso (“Mr Kelso Senior”).

12. As is set out below, the plaintiff identified what he called, in paragraph 1 of the statement of claim as filed, an occasion of “waterway rage” between the period April – May 2013 as well as a series of acts of vandalism between May 2013 – September 2014, setting out in the statement of claim that on each of these occasions Mr Kelso was “observed” performing these acts.

13. These are the first in time of the two proceedings in which the applications the subject of this judgment are made. Those applications include a request for the joinder of a series of persons and corporations asserted to be the owners of the water taxi business which employs Mr Kelso. Two of those proposed new defendants were also parties in the proceedings brought against Mr Kelso Senior summarised above. There is also an application to add four further alleged acts of trespass to goods.

14. The application to join Mr Kelso Senior as a defendant in these proceedings appears to be because Mr Kelso Senior (who lives in Queensland) is the person who arranged for his son to operate the Pink Water Taxi. His failure to remonstrate with or sack his son (in his asserted capacity as the owner of the business) is the principal reason why his son continues to make these attacks on Mr Mohareb. Surprisingly (and unlike the proposed sixth defendant), he does not figure on the list of witnesses whom the plaintiff intends to “subpoena for cross-examination” (plaintiff’s statement, paragraph 56), who are:

1. Ms Carla Graf;

2. Mr Scott Taylor;

3. Ms Margaret Stanley;

4. Senior Sergeant Michael Crews;

5. Mr Jason Mudie;

6. Mr Matthew Palmer;

7. Mrs Annette Palmer;

8. Mr Murray Baker;

9. Mr Geoff Bullock;

10. Mr Taylor Booth (the defendant in proceedings 2015/359339);

11. Mr Stefan Belic;

12. Mr Michael Wilding;

13. Mr Rod Smith;

14. Mr Jamie Sala.

15. In his witness statement, the plaintiff identifies all these persons as being witnesses whom he proposes to cross-examine (not to give evidence in chief). Since three of the fourteen witnesses (Mr and Mrs Palmer and Mr Booth) are persons against whom he currently has outstanding litigation, in the form of proceedings in this court and the Court of Appeal, this is unlikely to be a misunderstanding about the relevant evidentiary principles.

16. The plaintiff intends to cross-examine these witnesses, presumably after obtaining a ruling that their evidence is unfavourable, about the following issues:

1. Ms Carla Graf and the first ten witnesses on the list. Their testimony “will be as stated in the plaintiff’s statement” (the plaintiff’s statement is the sole statement filed). In the case of Ms Graf, Mr Taylor and Ms Stanley, Ms Graf is quoted as saying to the plaintiff “one day” (apparently during the period June to late July 2013: plaintiff’s statement, paragraphs 12 – 16) that “it is Alex who is doing all these things. He’s a dick head. Why can’t he be nice to people?” At the time the plaintiff did not know who Mr Kelso was, and the only incident referred to in the statement of claim to which this comment could refer is the “waterway rage” and mooring problem allegations in paragraphs 1 and 2 of the statement of claim. The plaintiff consulted Mr Taylor about Mr Kelso; Mr Taylor told him “about Mr Kelso’s nasty character” and suggested the plaintiff contact the absent owner of the house where the plaintiff wished to moor his boat. However, Mrs Stanley refused to let him do so. Both Ms Graf and Mrs Stanley are asserted to have observed the plaintiff’s damaged boat (plaintiff’s statement, paragraph 28)

2. Senior Sergeant Michael Crews. Although the plaintiff told me during his oral submissions that the police had not acted on these matters because they had no evidence (a matter about which he is angry), he will cross-examine Senior Sergeant Michael Crews about statements he made to the plaintiff to the effect that Mr Kelso had a history of complaints from people in the Scotland Island area for aggressive behaviour and that “I wish we could catch him” (plaintiff’s statement, paragraph 28).

3. Mr Jason Mudie. Mr Mudie is a neighbour who the plaintiff alleges will be cross-examined about seeing Mr Kelso disconnecting the plaintiff’s boat from its mooring and going to rescue it (plaintiff’s statement, paragraph 28). There is no claim that Mr Mudie is an unfavourable witness, but I note he has not given a statement setting out the evidence the plaintiff says he will give.

4. Mr and Mrs Palmer. Mr Palmer’s alleged assault of the plaintiff (the subject of his proceedings against Mr Palmer) is set out at paragraphs 2 – 5 of the witness statement. Although those proceedings are claimed by the plaintiff to have been settled by an apology (plaintiff’s statement, paragraph 43) and are not referred to in the claim against Mr Kelso, he intends to lead evidence of these events by requiring Mr Palmer to attend for cross-examination (which, since the plaintiff brought proceedings against Mr and Mrs Palmer for the same publication for which he now sues Mr Kelso, as well as the assault he now proposes to cross-examine Mr Palmer about, may give rise to problems of the kind discussed in Nau v Kemp (2010) 77 NSWLR 687). At paragraph 33 of his statement, the plaintiff refers to Mr and Mrs Palmer as knowing that Mr Kelso was responsible for puncturing the plaintiff’s car tyres on 15 July 2014. Mrs Palmer will be also cross-examined about shouting at the plaintiff to put his dogs on a leash and on one occasion trying to hit the dogs (plaintiff’s statement, paragraphs 29 – 32). The plaintiff also intends to rely on film which he says shows Mr Palmer assaulting him “to intimidate me into ceasing my legal proceedings against him in court” (plaintiff’s statement, paragraph 55). This will show that the plaintiff’s court matters “stem from one and the same series of events” (paragraph 55).

5. Mr Murray Baker and Mr Geoff Bullock are residents of Scotland Island who will say that Mr Kelso was the author and publisher of the poster which is the matter complained of in the defamation proceedings and the plaintiff will be “relying upon for cross-examination” the evidence they will give (paragraphs 41 – 42), although their evidence is asserted to be favourable to the plaintiff. They have not provided statements in support of such evidence.

6. Mr Taylor Booth is the defendant in proceedings 2015/359339 and will be cross-examined because “it is possible that Mr Booth was acting in collusion with Alex Kelso’s campaign of harassment, bullying and intimidation against me”, or more likely because he believed the defamatory imputations Mr Kelso was spreading about the plaintiff.

7. The last four witnesses on the list, Mr Belic, Mr Wilding, Mr Smith and Mr Sala will be cross-examined in the plaintiff’s case about “their knowledge of Mr Kelso’s character in terms of his threatening, bullying and intimidation of those he views as easy or vulnerable targets” (plaintiff’s statement, paragraph 56). However, as the list of proposed additional defendants shows, the plaintiff is also asking the court for leave to join Mr Rod Smith as the sixth defendant in these proceedings. Mr Smith and his wife (who is not proposed as a defendant) are connected with a company which operates Pink Water Taxi No 3; the defendant personally operates Pink Water Taxi No 2 and a company named Pink Water Taxi No 1 Pty Ltd (operated by directors who are not proposed as defendants) operates Pink Water Taxi No 1 Pty Ltd. Why Mr Rod Smith has been singled out as the proposed sixth defendant is unexplained.

17. This list of 14 witnesses is not final; it merely “represents those witnesses who are known to the plaintiff up to this point of time” and the plaintiff “reserves the right to add to the above list should others come forward or otherwise become relevant or known to the plaintiff at a later stage” (plaintiff’s statement, paragraph 56).

4. Mohareb v Booth (2015/359339)

18. This is the second claim which is the subject of the defendants’ application for a stay and the subject of a request by the plaintiff in relation to the manner of hearing of these claims.

19. On 7 December 2015, the plaintiff commenced proceedings against Mr Taylor Booth, the Church Point Ferry driver, asserting that on 18 August 2015 he intentionally drove his ferry at high speed towards the plaintiff’s boat and on 2 and 4 October 2015 made a “false allegation” that the plaintiff had been banned from the ferry service, on the second occasion using physical force to deny him access to the ferry. A defence had been filed and these proceedings are, at the request of the parties, travelling with the claim brought by the plaintiff against Mr Kelso, which was transferred from the General List to the Defamation List because it includes a defamation claim.

20. On 4 May 2016 the plaintiff filed a 12-page statement of evidence in those proceedings which refers briefly to the two incidents in October 2015 on pages 11 – 12. The rest of the statement relates to claims of assault by Mr Palmer and a person identified as “the defendant Alex Kelso”, whom the plaintiff encountered for the first time on 30 September 2013 when Mr Kelso said to him “you need to put your dogs on a leash mate”. According to this statement “From that point onward the acts of vandalism stated multiplying” (page 6). A similar but longer statement (with the same video material shot by the plaintiff of certain events) has also been provided in the proceedings against Mr Kelso.

18. The order the plaintiff seeks from me in this application is for these proceedings to be heard first, ahead of his proceedings against Mr Kelso (2015/201139), so that the transcript of those proceedings can be tendered in the subsequent proceedings against Mr Kelso. The plaintiff states that Mr Booth will admit to having been told by Mr Kelso to perform these acts and that the transcript of such admissions will help him win his separate case (2015/201139) against Mr Kelso.

The procedural history of the applications

22. There has been an unacceptable history of delay in the conduct of the plaintiff’s applications for leave to amend and to join additional parties in the proceedings against Mr Kelso, which he first foreshadowed in February 2016.

23. On 18 February 2016, when the plaintiff first asked the court to make these orders, the orders he sought were different (in terms of the number of new parties and amendments) from those he now seeks. The application was also unready to proceed. None of the relevant parties had been notified of the application, there was no draft amended pleading and there had been no compliance with the Practice Note.

24. I made the following orders on 18 February 2016:

1. The plaintiff is to comply with Practice Note 6 to provide a concise outline and list of authorities the following applications in 28 days:

1. Application to amend the statement of claim to add a second and third defendant;

2. Application for access to material produced by NSW Police on 15 December 2015;

3. Application for proceedings 2015/359339 to be heard ahead of, or at the same time of, as 2015/201139;

4. Application to include an additional count of vandalism against Mr Kelso in 2015/201139.

2. Extend time for the plaintiff’s statements from 11 February 2016 to Thursday 24 March 2016, noting Mr Mohareb’s entitlement to provide additional statements following the applications set out above, such extension to be subject of the proviso in order 4 below.

3. Leave to the plaintiff to subpoena the NSW Police in relation to event number 60203426.

4. The extension of time for the putting on of evidence is a self-executing order (this being the third order) and the plaintiff has been advised that if he does not provide statements concerning the information currently in his possession (as opposed to the additional evidence he seeks to put on) he will not be permitted to lead that evidence at trial.

5. Matter stood over to Thursday 7 April 2016 for further directions in the Defamation List, including the determination of as many issues the subject of the plaintiff’s application as is possible on that date.

6. The plaintiff is to notify Mr Booth, Saratoga Marine Pty Ltd, Saratoga Integration Pty Ltd and the NSW Police of these orders within 7 days.

7. Costs of today reserved.

25. When the proceedings came back before me on 7 April 2016 the plaintiff’s applications were still not ready for hearing. I made the following orders:

1. Plaintiff’s submissions in reply in 28 days.

2. Matter listed for argument (1 hour maximum) on Thursday 12 May 2016 at 9:00am.

26. When the proceedings came back before me on 12 May 2016 the plaintiff had still not provided a pleading identifying the claims against the proposed new defendants and was seeking to bring defamation claims outside the limitation period. I made the following orders:

1. Specially fix the plaintiff’s application to amend the statement of claim to add five defendants and four new causes of action (opposed by all defendants) in the Defamation on Thursday 16 June 2016 as a one hour application (must proceed on that day).

2. Proceedings 2015/359339 (Mohareb v Booth) is to be listed at the same time.

3. The plaintiff is to provide a further draft amended statement of claim to properly identify “the Defendant” in paragraphs 15-19 and to set out the claims against the second to sixth defendants by Monday 16 May 2016.

4. Defendants’ outline of submissions to be provided 14 days after receipt of the amended statement of claim.

5. Note that the plaintiff has been informed that any enlargement to the 2014 defamation to include any claim against the second to sixth defendants may be statute barred.

27. When the proceedings were listed for hearing before McLoughlin SC DCJ on 16 June 2016 they were still not ready to proceed. The submissions of Coyne Legal filed on 14 June 2016 complained that no cause of action was pleaded against any of the five defendants sought to be added to the proceedings. There were also problems in relation to service. His Honour made the following orders on 16 June 2016:

1. Motion to join additional five defendants has not been personally served and Ms Vanderfield does not have instructions to accept service. Ms Vanderfield to obtain instructions and will notify plaintiff within three weeks.

2. Within 4 weeks plaintiff to serve evidence in support of cause of action – Statement of Claim and Motion.

3. I reserve defendants’ costs of today.

28. The proceedings were listed for directions before me on 28 July 2016 to accommodate both the plaintiff’s outstanding applications and the defendants’ Notice of Motion filed on 14 June 2016 concerning their applications for a stay. I made the following orders:

1. Direct the proposed new defendants’ solicitors to file a Notice of Appearance in 7 days.

2. Direct the proposed new defendants to file and serve any written submissions in 14 days.

3. List the proposed new defendants’ notice of motion and the plaintiff’s application to amend for argument on Thursday 8 September 2016.

29. This is an unacceptable degree of delay. Not all of it is attributable to the plaintiff, but his unreadiness over a long period has been the main cause. This has been a factor in my making the order that the parties should show cause why these proceedings should remain in the defamation list.

30. By agreement with the parties I first dealt with the defendants’ application for a stay.

The defendants’ application for a stay

31. The defendants’ application for a stay (which was filed only Mr Kelso’s proceedings, but is stated to be brought also on behalf of Mr Booth and the five prospective new defendants in the proceedings against Mr Kelso) was brought after proceedings were commenced by the New South Wales Attorney-General in the Supreme Court of New South Wales for orders in relation to the plaintiff under the Vexatious Proceedings Act 2008 (NSW). The notice of motion was originally supported by an affidavit of Glenn Michael Coyne, solicitor but, as Mr Coyne was not available for cross-examination by the plaintiff, Ms Vanderfield, his employed solicitor, reswore the affidavit and offered herself for cross-examination, as the plaintiff had requested that the deponent be made available for cross-examination.

32. The affidavit Ms Vanderfield reswore is of very limited assistance, in that it attaches memoranda of fees for $12,950 for Mr Coyne’s work in the Kelso proceedings, estimates that trial costs could be in the region of $31,900 (an estimate I consider, having regard to the number of witnesses as set out above and the complexity of issues, to be completely unrealistic) and notes that the plaintiff’s evidence at trial will consist only of his own evidence as supported by digital footage which Mr Coyne complains is illegally obtained (which is incorrect, given the list of witnesses the plaintiff proposes to cross-examine).

33. Ms Vanderfield was cross-examined about a range of matters, such as an asserted inconsistency between her opposition to the proceedings against Mr Booth being heard first (which she did on costs grounds) and her application for a stay, on different costs grounds. Ms Vanderfield responded that the application brought by the New South Wales Attorney-General post-dated her firm’s earlier position and that she had updated her position accordingly.

34. As Ms Vanderfield gave evidence in the witness box, I am entitled to comment upon her demeanour. She answered questions in cross-examination frankly, appropriately and indeed courageously, but she appeared to me to be terrified. She should not have been left to conduct this lengthy application without assistance.

35. Mr Mohareb provided me with written submissions referring to errors of law in the submissions of the Attorney-General (with which I was not provided by either party), emphasising errors identified by Basten JA in Viavattene v Attorney-General [2015] NSWCA 44 which he submitted renders these submissions as wrong in law as well as hopeless. Ms Vanderfield knew nothing except that the application was on foot, and submitted that there must be something to it, or it would not have been brought. The only other information she could give me was that the proceedings under the Vexatious Proceedings Act are listed for hearing in the Supreme Court on 14 October 2016.

36. It is not appropriate for me to speculate on whether the application under the Vexatious Proceedings Act 2008 will succeed or fail, beyond noting that the common law system is an adversarial system, and complaints about how (McGuirk v University of New South Wales [2011] NSWCA 179) or why (Ballina Shire Council v Ringland [1999] NSWSC 11) litigation is conducted are generally unsuccessful.

37. In the absence of more compelling submissions, I am not prepared to grant a stay of these proceedings, which were commenced on 9 July 2015 and are at the stage of witness statements, and was so generally phrased that no mention of the position of Mr Booth or the five prospective new defendants was made. Accordingly, I told the plaintiff during the course of the argument on 8 September 2016 that it was not necessary for him to respond to the application of both the defendants in these two proceedings for a stay, as I proposed to dismiss their notice of motion and to deal with the plaintiff’s applications before the court, and that I would give my reasons for dismissing the defendants’ application in this judgment.

The application to join new parties and/or bring fresh claims for causes of action other than defamation

38. It is clear from my orders of 18 February 2016 that the plaintiff brought his application to join five additional defendants (although on that date, it should be noted, the plaintiff only sought orders for joinder of three defendants) without identifying, in his proposed amended pleading, what his case against each or any of them would be. In their submissions of 14 June 2014 (for the hearing before McLoughlin SC DCJ), the defendants noted that the draft amended statement of claim still did not plead any claims against each of them, or identify the basis for their joinder. This was essential information for the solicitors as well as for the proposed new defendants, as these defendants are the former and present owners (or franchisees) of the same business and there could be a conflicts of interest which may result in their needing to be separately represented.

39. The circumstances in which the plaintiff failed to plead the causes of action requiring the joinder at all when he first brought these applications, and the circumstances in which a series of amendments seeking to join first three and then five new defendants, have added confusion and uncertainty to what was always a difficult claim to conceptualise. This has been complicated by the manner of presentation of the plaintiff’s applications. While particulars have now been provided in the proposed Amended Statement of Claim, several versions of this document have been provided and, as is set out in more detail below, the difference between these is of some relevance.

40. The relevant extracts of the proposed amended statement of claim which the plaintiff told me on the day of the hearing of this application was the final version, and which was marked Exhibit A as a result of that assurance, is as follows, with the amendments underlined but with the omitted parts (such as the reference to “waterway rage” in paragraph 1) left out:

“Trespass

1. In the period from late April to early May 2013, near Carols wharf [sic] on Scotland Island, the First Defendant was observed using his Pink Water Taxi boat as a weapon instrument in an attempt to de-stabilise the Plaintiff and have him fall off his boat and that he did by swerving very sharply at great speed and very closely past the Plaintiff’s boat. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

2. In the period from late May to early June 2013, near Carols wharf [sic] on Scotland Island, the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, was repeatedly observed disconnecting the Plaintiff’s boat from its mooring and leaving it stranded on the rocks in low tides causing damage to the boats anti-fouling protective layer. The First Defendant also left messages for the Plaintiff in which he falsely alleged to be the owner of the wharf and ordering the Plaintiff to remove his boat. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

3. On or about September 2013, at Carols wharf [sic] on Scotland Island, the First Defendant verbally abused and physically threatened the Plaintiff, by pushing the Plaintiff, because of the Plaintiff’s refusal to submit to an order from the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, to put his dogs on a leash. This included the following threats from the First Defendant to the Plaintiff: “I’m going to get you”, “you are stuffed” & “you are not going to have fun”. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

4. On 7th December 2013, near Carols Wharf on Scotland Island, the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, was observed removing the Plaintiff’s outboard motor cowling from the Plaintiff’s boat. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

5. On 31st December 2013, at Carols wharf [sic] on Scotland Island, the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, was observed puncturing the Plaintiff’s inflatable dinghy.

6. In the first half of January 2014, at Carols wharf [sic] on Scotland Island, the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, was observed disconnecting the Plaintiff’s boat from its mooring and letting it drift away with the wind and currents. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

7. In the first half of February 2014, at Carols wharf [sic] on Scotland Island, the First Defendant, whilst the First Defendant was working in and about his Pink Water Taxi, was observed disconnecting the Plaintiff’s boat from its mooring which resulted in the Plaintiff’s boat being stuck under the wharf and then filled with water at high tide and sinking. This lead to extensive damage to the boat’s motor and electric system. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

8. On 15th July 2014, on Thompson Street – half way between Carols & Bell wharves – on Scotland Island, the First Defendant was observed puncturing the 4 tyres of the Plaintiff’s car. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

9. On 15th July 2014, at Church Point car park, near the Church Point commuter wharf, the First Defendant was observed puncturing the 4 tyres of the Plaintiff’s other car. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

10. From around mid August to late September 2014, at the Church Point car park, near Church Point commuter wharf, the First Defendant was repeatedly observed knocking over the Plaintiff’s motorbike as well as dragging it – while locked – several parking spots from where the Plaintiff had parked it. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

11. In the first half of January 2016, the First Defendant, on Scotland Island at the top of the Bel [sic] Wharf steps, broke into the Plaintiff’s car and ripped the car’s ignition barrel from its connection to the dashboard and took it away and also punctured one of the car’s tyres. Whereby the Plaintiff was put in fear and great humiliated and embarrassed.

12. On Thursday 31st March 2016, the First Defendant, in the motorbikes area of Church Point car park, vandalised the Plaintiff’s electrically assisted bicycle by ripping off and stealing components (the controller, the cycle analyst computer) of the electric conversion kit fitted to the bicycle and cut the cables connecting those components to the rest of the kit. He also stole the bicycle seat including the pole and its lock in place mechanism. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

13. Sometime between 24th & 25th April 2016, the First Defendant in the Church Point car park stole the Plaintiff’s car number plates. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

14. Sometime between 29th April 2016 and 1st May 2016, the First Defendant, in the Church Point car park smashed the Plaintiff’s rear left car window. Whereby the Plaintiff was put in fear and greatly humiliated and embarrassed.

15. At all material times the:

(i) First Defendant (Alexander Edward Kelso) was the employee, servant or agent of the Second Defendant (Saratoga Marine Pty Ltd);

(ii) Third Defendant (John Alexander Kelso) was the controlling mind and body of the Second Defendant (Saratoga Marine Pty Ltd), being its Director and manager.

(iii) Fifth Defendant (Lawrence Leeson) was the controlling mind and body of the Fourth Defendant (Leetec Pty Ltd) being its Director and manager.

(iv) Second, Fourth and Sixth Defendants combined in a partnership whereby they operated for profit (and agreed to share those profits), through the personal exertions of the First, Third, Fifth and Sixth Defendants (including their servants and agents), the Pink Water Taxi service, in and around the Scotland Island area.

(v) First Defendant was employed by the Second Defendant to drive Water Taxis, pursuant to the Second Defendant’s desire and obligation to further the purpose of the said partnership.

(vi) Second, Fourth and Sixth Defendants, through the personal exertions of the Third, Fifth and Sixth, and their servants and agents, exercised control over the First Defendant and from time to time directed him as to the performance of his employment duties so as to give effect to and to further the purpose of the said partnership.

16. It is alleged that the Plaintiff did, when each of the acts set out in Paragraphs 1 to 14 occurred, or reasonably proximate to their occurrence, informed the Third, Fifth and Sixth Defendants of those acts and that it was the First Defendant who did each of them.

17. Further, it is alleged that the Third, Fifth and Sixth Defendants knew that the First Defendant had a propensity to be violent and aggressive towards, and to commit criminal acts against, passengers of Pink Water Taxis and members of the public who displeased, or defied the First Defendant’s will and further knew that the First Defendant was displeased with the Plaintiff and that the Plaintiff had defied the First Defendant’s will.

18. In the premises, it is alleged that the Second to Sixth Defendants are guilty of negligence in that they:

(i) Exposed the Plaintiff and his chattels to a risk of injury and harm which could have been avoided by reasonable care;

(ii) Failed to observe that the Plaintiff and his chattels were in a position of peril in the circumstances;

(iii) Failed to devise, institute and maintain any, or any adequate, system to deal with complaints or warnings about the First Defendant’s conduct towards members of the public in general and towards the Plaintiff in particular;

(iv) Failed to heed warnings of the Plaintiff that the First Defendant’s conduct was violent and aggressive toward the Plaintiff;

(v) Failed to employ competent persons to deal with passenger and members of the public, whilst the Pink Water Taxis were being operated by the First Defendant;

(vi) Failed to devise, institute and maintain any, or any adequate, system to supervise the First Defendant;

(vii) Failed to devise, institute and maintain any, or any adequate, system for responding to complaints and warnings of the kind made by the Plaintiff about the conduct and behaviour of the First Defendant;

19. Further and in the alternative, whilst engaged in his employment with, and whilst in performance of his duties to, the Second Defendant, and to the partnership, the First Defendant committed the acts set out in Paragraphs 1 to 7 above.

20. In the circumstances, the Second to Sixth Defendants, and each of them, are vicariously liable for the actions of the First Defendant as set out in Paragraph 1 to 7 above.

21. Whereby the Plaintiff has suffered loss and damage.”

41. I have not set out the now-withdrawn amendments to the defamation claim or to the damages claims, the contents of which are (except for the matters set out at 42(c) below) of limited relevance to this application.

42. The differences between Exhibit A and the drafts earlier provided to the court are significant. I particularly note:

1. The first draft amended statement of claim provided to the defendant in proceedings 2015/201139 (and to the court in the course of the directions on 18 February 2016 set out above) sought only to join Saratoga Marine Pty Ltd Trading as Pink Water Taxis and Saratoga Integration Pty Ltd, and did not contain any of the underlined portions except the word “first” in front of “defendant” and the first sentence of paragraph 11, concerning the damage to the plaintiff’s car at Bel Wharf steps.

2. Another pleading, also called “draft amended statement of claim”, was then provided. This pleading adds the words “from the vantage point of his Pink Water Taxi boat” to paragraphs 2, 4, 6 and 7 and added paragraphs 12 – 14 as set out above. In addition, a new defamation claim against Mr Kelso was pleaded in paragraphs 17 and 20, namely that in his capacity as one of the Pink Water Taxi Operators, he used his employment to repeat the defamatory imputations on dates which are not disclosed. Particulars of identification referring to the plaintiff’s employment with Pink Water Taxis are also added. The contents of paragraphs 17 and 20 (which were impermissibly rolled-up pleas and must have included publications outside the limitation period) were removed, but the particulars of identification concerning the Pink Water Taxis remain.

3. Neither of these earlier drafts contained the claims of the plaintiff being caused shame and embarrassment, the claim for punitive damages for the assault and trespass, or the claim for “grapevine effect” in the defamation claim.

4. Both these earlier versions of the amended statement of claim differ significantly from Exhibit A for the above reasons, but neither was described as a further amended pleading and there was confusion at the hearing which resulted in my seeking to have the current proposed amended pleading marked as Exhibit A. While I appreciate that the plaintiff is entitled to appear on his own behalf, confusions arising from differently pleaded drafts make applications of this kind difficult to conduct efficiently.

43. The plaintiff’s claim against the proposed additional five defendants appears to be that:

1. The conduct identified in paragraphs 1 – 7 of the statement of claim is now said to have occurred while the defendant was “working in and about his “Pink Water Taxi”, which I assume is to be relied upon in relation to the proposed liability of some or all of the proposed new defendants (although this is not stated, and the relevant defendant(s) in each claim is/are not identified).

2. After each of the incidents referred to in paragraphs 1 to 14, the relevant defendants were on notice of the likelihood of the “first defendant” committing these offences because:

1. The defendant was “violent and aggressive” against unspecified “members of the public” who defied him; and

2. The plaintiff told unspecified owners of the Pink Water Taxi business that the defendant had performed these acts after each of these acts was performed. (When I asked the plaintiff if he could identify to whom he spoke and when, he was not able to answer beyond saying that he spoke to the defendant’s father (Mr Kelso Senior), although he lives in Queensland. It would appear that the plaintiff has only been aware of the identity of the fourth to sixth proposed new defendants since some time after 18 February 2016, so he could not have spoken to them, and I note Mr Leeson resides in the United Kingdom).

3. The claim pleads that each of these persons is “guilty of negligence” for having breached an unspecified duty of care to the plaintiff and/or other members of the public, by reason of having this knowledge and failing to take one or more of the steps set out in paragraph 18 of the claim.

4. Alternatively, they are vicariously liable for the first defendant’s acts, presumably on the basis of the first defendant’s standing as an employee, servant or agent of the proposed new second defendant.

44. The submissions of the proposed second to sixth defendants are limited; most of their submissions went to the question of the application to add them to the defamation claim, which is now abandoned. However, it is unclear whether the defendants have all been carrying on the Pink Water Taxi business at the same time, or over the whole of the period of time, as part of the same business. The plaintiff states in his submissions, and noted in his oral submissions, that some of the defendants have a franchise agreement and/or partnership. None of this is particularised in the latest draft statement of claim, where liability is posited on the basis that each of them is an “employer” of the defendant.

45. The plaintiff’s submissions in support of the application set out that “the extra defendants which the plaintiff is [sic] seeking to act are either employers or business partners of the first defendant and the plaintiff will be seeking to demonstrate to [sic] court that almost all of the matters complained of [sic] were undertaken by the first defendant during the course of his employment and were made possible to the first defendant by the status and practical convenience which the nature of his mode of employment confers upon him” (written submissions, paragraph 2).

46. I pause to note that, despite the reference to “matters complained of”, the plaintiff agreed, in the course of his oral submissions, that he now accepts any attempt to join these defendants in relation to the claim against Mr Kelso for defamation falls outside the limitation period. No application has been made to extend the limitation period. However, both these claims have spent six months in the Defamation List principally because of this now abandoned application, which is not an acceptable use of time in the Defamation List.

47. The additional reason for adding these parties is that it was “well known to his father/employer and to his business partners” that Mr Kelso had “an ingrained personality trait”, namely a compulsion to become vindictive and seek to retaliate, bully, intimidate and otherwise seek to subjugate individuals he views as vulnerable and who refuse to submit or otherwise defy his will to subjugate him” (written submissions, paragraph 3). This is “a fact upon which there is unanimous agreement from anyone who has lived or worked on Scotland Island” and who has had any dealings with the plaintiff (including police, residents and trade persons) which is corroborated by the plaintiff’s videos of Mr Kelso and by police records of complaints about Mr Kelso.

48. I am unclear which are the police records in question, but one has been tabbed by the plaintiff for me, namely an event in 1998 when an unnamed young person was a Year 12 student who was involved in an assault with another student. The police record notes he had no prior record and the complaint resolved by an undertaking which involved one of the unnamed young person’s parents.

49. The plaintiff says that, in knowing about and tolerating this behaviour, the proposed additional defendants had rendered themselves both negligently and vicariously liable “for not taking any action to prevent or stop the first defendant’s complained of behaviour” and that “in this respect, the plaintiff submits that, the current case is no different from the case of [sic] church hierarchy covering up for and providing shelter and legitimacy for the abusive behaviour of paedophile priests” (plaintiff’s submissions, page 3).

50. The principal problem is that the liability of an employer for criminal acts of an employee is a complex question and not one solvable by simply adding the words to certain of the claims that the plaintiff was working on one of the water taxis at the time. Employers are liable for the actions of an employee carried out in the course of employment, but not otherwise (Brockway v Pando (2000) 22 WAR 405 at [108]-[109]).

51. The High Court held, in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511, that the non-delegable duty of schools did not extend to the intentional criminal wrongdoing of its teachers, although giving differing reasons for doing so. Gleeson CJ, Gaudron and Kirby JJ considered the test depended upon the “connection” between the wrongful act and employment of the employee; Kirby J (at [315]-[320]) proposed a “sufficiently close connection” test (at [315]) whereas Gummow and Hayne JJ (at [231]) made a more general statement to the effect that vicarious liability may be imposed under the following circumstances:

“First, vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having.”

[Original emphasis]

52. The claims at trial in New South Wales v Lepore were for trespass and negligence; the issue of vicarious liability was only raised on appeal. Mr Mohareb submitted that the errors in pleading by the plaintiff in that case in so doing were criticised by the High Court and that, if the plaintiff had pleaded the case correctly (as Mr Mohareb says he has done), the plaintiff would not have lost. This overlooks the exceptional nature of the relationship between the school authority and the pupil (at [2] per Gleeson CJ), as well as the very real problem of blaming an employer for an employee’s resentful acts against a third party in circumstances which have nothing to do with employment.

53. The High Court acknowledged the difficulties caused by behaviour of this kind in Deatons Pty Ltd v Flew (1949) 79 CLR 370, noting that acts falling outside the scope of employment (in those proceedings, a barmaid who threw beer in the face of a customer), which are done for the employee’s own benefit, are not acts for which the employer is liable unless “they are acts to which the ostensible performance of his master's work gives occasion or which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master” (at 381 per Dixon J). Latham CJ pointed out at 379:

“But throwing beer in the face of a customer simply was not a means of keeping order, nor in my opinion can it be said that such an action is incidental to the work which the barmaid was employed to do. Upon the plaintiff's evidence the throwing of the beer was a gratuitous, unprovoked act which had nothing at all to do with the performance of the duties of the barmaid. Upon the evidence given for the defendant the act was an act of personal resentment and was not in any way performed as on behalf of the employer. It was not done even in supposed furtherance of the interests of the employer. In doing what she did the barmaid was, as Isaacs J said in Bugge v Brown (1919) 26 CLR, at p 118 acting so "as to be in effect a stranger in relation to (her) employer with respect to the act (she) has committed, so that the act is in law the unauthorized act of a stranger." In my opinion the act of the barmaid was not expressly authorized, it was not so connected with any authorized act as to be a mode of doing it, but was an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform. Accordingly in my opinion there was no evidence to go to the jury as against the defendant company and the defendant company was as a matter of law entitled to a verdict.”

54. At 381-382, Dixon J added:

“The truth is that it was an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”

55. Looking at each of the matters pleaded in paragraphs 1 to 14 of the Draft Amended Statement of Claim, none of the acts of the first defendant relate in any way to his conduct while carrying out his duties as an employee, let alone being done in the course of his employment. These acts were:

1. Using his water taxi boat to swerve very sharply towards the plaintiff’s boat, in the period late April to early May 2013;

2. Disconnecting the plaintiff’s boat from its mooring and leaving it stranded on the rocks, between May and June 2013;

3. Arguing with the plaintiff about putting the plaintiff’s dogs on a leash, in about September 2013;

4. Removing the plaintiff’s outboard motor cowling from the plaintiff’s boat, on 7 December 2013;

5. Puncturing the plaintiff’s inflatable dinghy, on 31 December 2013;

6. Disconnecting the plaintiff’s boat from its mooring and letting it drift away, in the first half of January 2014;

7. Disconnecting the plaintiff’s boat from its mooring, in the first half of February 2014;

8. Puncturing the four tyres of the plaintiff’s car, on 15 July 2014 when it was parked in Thompson Street;

9. Puncturing the four tyres of the plaintiff’s second car, also on 15 July 2014 in the Church Point car park;

10. Knocking over the plaintiff’s motorbike and dragging it several parking spots from where the plaintiff had parked it, from mid-August to late September 2014;

11. Breaking into the plaintiff’s car, ripping out its ignition barrel and puncturing one of the car tyres, in the first half of January 2016;

12. Vandalising the plaintiff’s electrically assisted bicycle, on 31 March 2016;

13. Stealing the plaintiff’s car number plates, between 24 and 25 April 2016; and

14. Smashing the plaintiff’s left rear car window while it was in the Church Point car park, on a date between 29 April and 1 May 2016.

56. Apart from the “waterway rage” referred to in paragraph 1 of the statement of claim, which actually involved using the water taxi in the conduct impugned, none of these activities relate to the first defendant’s employment at all.

57. I note that the plaintiff now proposes to remove the words “in an act of ‘waterway rage’” from this paragraph in his latest draft. If this conduct were indeed “waterway rage”, then it would be hard to argue that this was not the same kind of resentment that the barmaid demonstrated in Deatons v Flew. Amendments of this kind make it appear that the plaintiff is changing the goalposts so as to sheet liability home to an employer and avoid the consequences of Deatons v Flew.

58. The problem in relation to the pleading of the remaining acts of malicious damage is that the conduct described is even further removed from the course of the defendant’s employment duties. I note the uncertainty as to the date of some of these events (for example, the conduct in paragraph 3 of the draft amended statement of claim has had the date changed from “mid to late June” to “on or about September 2013”), suggestive of the possibility that these acts were performed surreptitiously in the absence of others, and that many appear to have been performed on land rather than at sea. Although the plaintiff recites that some of these activities were “observed”, he does not identify the observer and, as Ms Vanderfield points out, the only evidence of these events is the plaintiff’s hearsay evidence of what others allegedly told him. There are no invoices for repairs. The plaintiff has complained to the police but they have declined to act due to lack of evidence.

59. However, a paucity of evidence is not a reason to refuse a party leave to amend. The real difficulty the plaintiff faces is that there is no connection between the first defendant’s alleged criminal acts and his employment as a driver of the Pink Taxi (whether in a state of “waterway rage” or otherwise) or his other work-related duties. The requirement in New South Wales v Lepore; Samin v Queensland; Rich v Queensland and Deatons v Flew that the identification of what the employee was actually employed to do and held out as being employed to do, which is central to any enquiry about course of employment, simply cannot be satisfied.

60. The difficulties the plaintiff faces in drawing a connection with the defendant’s employment and liability of his employers may be illustrated by way of analogy. Since some of these activities related to acts of vandalism in a car park, what cause of action would the plaintiff have against the proprietors of the car park? This difficulties with such a claim were explained by the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

61. Nor would any complaint made by the plaintiff to one or more of the proposed new defendants amount to grounds for liability for their failure to sack or counsel the defendant, this being one of the reasons for assertion of liability. In Gordon v Tamworth Jockey Club Inc. (2003) Aust Torts Reports 81-698 the appellant plaintiff was assaulted in the respondent defendant’s premises by the respondent’s employee, who was drunk at the time. Before the assault occurred, an executive member of the employer had observed the employee was drunk and had spoken warningly to him, but did not give instructions to the employee to leave the premises. The New South Wales Court of Appeal held that the vicarious liability of an employer extended only to situations where the act in question was within the scope of the employee’s authority, where it falls within a mode of doing authorised work, where it was an act the employee was employed to perform, or where it was an act that was incidental to the employee’s employment. In those circumstances, the employer could not be held vicariously liable for the subsequent assault by its employee on the appellant plaintiff, even though an executive employee of the employer had observed the employee being drunk prior to the assault.

62. There are real causation problems here as well, in that what the plaintiff seems to be submitting is that if the proposed new defendants had sacked Mr Kelso, he would not have been able to live on Scotland Island and that, if he had to move away, he would not have been able to come to Scotland Island to continue his vendetta against the plaintiff.

63. In Gordon v Tamworth Jockey Club Inc New South Wales Court of Appeal went on to note (at [36]) the statement by Heydon JA in Ashrafi Persian Trading Co Pty Ltd v Ashrafinia (2002) Aust Tort Reps 81-636 at [61], where the plaintiff attempted to sheet home liability to a motel after she was assaulted by an intruder:

“[36] Ashrafi Persian Trading Pty Ltd v Ashrafinia concerned an assault upon the respondent by an unknown person while the respondent was sleeping on the ground floor of a motel owned and operated by her family. Her assailant struck her on the head with an iron bar through a small gap in a sliding window. There was an internal locking device on the sliding window as well as a short stick placed in the runner of the window to prevent its being open more than a few centimetres. The respondent sued the family company that owned the motel, claiming its failure to implement satisfactory security measures constituted a breach of the duty of care it owed to her. The trial Judge held that the appellant's failure to avert the danger with adequate security measures rendered it liable in negligence. In allowing the appeal Heydon JA, with whose judgment Mason P and Handley JA agreed, discussed the relevance of the Modbury doctrine. At 68,333 [61] Heydon JA said:

“But the general immunity in tort, as distinct from contract, can be illustrated in various ways. An employer owes no duty to an employee to prevent a third party stealing the employee's property (Deyong v Shenburn [1946] KB 227; Edwards v West Herts Group Hospital Management Committee [1957] 1 WLR 415 at 420 and 422). An employer owes a duty not to leave a drum filled with highly inflammable vapour in a place where it can easily be accidentally ignited, but no duty to take precautions against an arsonist workman igniting it deliberately (Empress Car Co (Abertillery) Ltd v National Rivers Authority [1999] 2 AC 22 at 31-32). While the occupier's duty is to protect not only the visitor's body but also the visitor's goods from damage due to defects in the premises, the occupier is under no duty to protect goods from the risk of theft by third parties (Tinsley v Dudley [1951] 2 KB 18). The duty of occupiers to prevent a property occupied from being used to commit crimes injuring others has been narrowly described in recent cases (P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342; Smith v Littlewoods Organisation Ltd [1987] AC 241; W D & H O Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) Aust Torts Reports 81-473 43 NSWLR 338). In short, ‘duties to safeguard from harm deliberately caused by others are unusual’ (Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 at 368 per Lord Hoffmann).””

[Emphasis added]

64. Heydon JA also referred to the judgment of McHugh J in Pyrenees Shire Council v Day (1998) 192 CLR 330 at [101]-[102] as to the historical distinction of law between causing damage by a positive act and “causing” danger by a failure to act. The negligence and vicarious liability consequences of a failure to act are yet another hurdle in the face of the plaintiff’s proposed new claims.

65. The circumstances in which one party has a duty to protect another from criminal conduct of a third need to be viewed carefully in this regard, as the Court of Appeal noted in at [39]-[41], concluding at [42]:

“[42] If the respondent was not vicariously liable for Mr Cook's assault because it was outside the scope of his authority, it is difficult to see how the relationship between the respondent and Mr Cook as employer and employee is relevant. In principle, the situation is no different from a case where a member of the public lawfully on the premises and having consumed a considerable amount of alcohol suddenly and unexpectedly assaults another person on the premises. In such a situation, in order to recover in negligence the person assaulted must rely upon a general duty owed by the respondent to persons lawfully on the premises to take reasonable care to protect them from criminal activities such as assault; see per Hayne J 205 CLR at 290. What is required must be measured against what is practicable; Chordas v Bryant. Assuming such a duty to be owed the only evidence that there was a breach in this case was the evidence of what occurred immediately before the assault and the assault itself. There was no evidence that at any time earlier during the day Mr Cook had given any indication that he was likely to assault anybody. The case is distinguishable from those in which members of the public are invited by the occupier on to the premises in such numbers and in such circumstances that crowd control including the removal of people behaving aggressively is essential to the safety of others lawfully on the premises. This case falls within the Modbury principle that an occupier is not responsible for the criminal activities of people on the premises certainly in the absence of any indication that those persons proposed to commit a criminal act. In my opinion it is nothing to the point that the respondent's official noticed shortly before the assault that Mr Cook was drunk and saw him throw a stubby at a possum when he was near the appellant.”

66. The plaintiff’s argument for joinder of fresh parties is particularly weak in relation to the claims against Mr Leeson (a director of Leetec Pty Ltd), who resides in the United Kingdom, and his company, as the nature of their involvement is simply unexplained. The problems in relation to the joinder of Mr Rod Smith, who has been singled out for unexplained reasons, are set out in more detail above, as are the difficulties in relation to the joinder of Mr Kelso Senior and his company. Individually, as well as generally, the plaintiff’s claims against these persons and corporations are not simply inadequately pleaded and based on misconceptions of law, but come close to abuse of process.

67. There are also problems in relation to the pleading of the claim for damages. Although all but one of these claims is for trespass to goods, the damages sought are general damages for humiliation and embarrassment rather than for the cost of repairs, new tyres and the like. The entitlement of a party to claim heads of damage such as humiliation and/or punitive damages for trespass to goods raises novel issues of law: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 (and I note, in the present case, that complaints about the plaintiff filming them are made by the defendants).

68. To the confusion caused by inadequate pleadings must be added the procedural and evidentiary problems discussed above, such as the difficulties arising the list of 14 witnesses the plaintiff proposes to “cross-examine” in his own case (one of whom is the proposed sixth defendant and four of whom have been the subject of previously terminated claims brought by the plaintiff). Ms Vanderfield’s submissions about the failure of the plaintiff to set out in his evidence the relevant facts in relation to each of the proposed defendants and the lack of corroborating evidence for his claim are also of relevance. This will be a very lengthy trial on the pleadings even in their current form, in part because of the manner of conduct of proceedings by the plaintiff; the hearing of this application occupied over half a day.

69. Taking the above factors into account, the application to join new parties is so hopeless as to satisfy the very exacting General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125) and leave to join the new parties and to amend the statement of claim in relation to their asserted liability for Mr Kelso’s alleged acts should not be granted.

The other proposed amendments

70. Nor do I consider that the four additional claims of vandalism pleaded against the first defendant should be permitted, for much the same reasons, so I will not repeat them. In their current form, the relevant paragraphs of the draft amended statement of claim merely refer to the defendant having committed these acts. They do not, unlike some of other acts pleaded, say that he was observed doing so, or set out the facts and matters relied upon to assert that he and not some other person performed these acts.

71. Nor do they particularise any claim for damage to property in any acceptable form. This is a defect in relation to the damages claims for all of the other claims in this pleading, and those proposed amendments to plead the damage arising should similarly not be allowed. The plaintiff’s claim that he need only establish liability and that after judgment he could charge the defendant what he calls “market value” for the repairs is impermissible. The quantum of the claim, as well as liability, must be able to be determined by the court.

72. Nor should the claim for punitive damages be permitted until such time as the existing claims have been properly pleaded and the basis of the claim for punitive damages identified with more precision.

73. In those circumstances, I do not propose to permit the plaintiff to make any of the amendments sought.

The application for the Mohareb v Kelso proceedings to be heard behind Mohareb v Booth

74. At present these two matters are travelling together in the Defamation List for case management purposes, at the request of the parties. When they are ready for hearing, the question of whether they should be set down together may be determined by the List Judge. If they are set down together for hearing, the question of the order in which the proceedings should be heard is best left to the trial judge.

75. I have read the witness statement of the plaintiff in the Mohareb v Booth proceedings. It refers only very briefly to two of the three incidents complained of in the statement of claim (on pages 11 and 12 of his statement); the rest of the statement refers to the claims against Mr Palmer and Mr Kelso. There are no other witness statements.

76. The timetable in Mohareb v Booth provided for the defendant to file witness statements by 8 June 2016 but he did not do so. Ms Vanderfield submits that her client was entitled to defer compliance because there had been talk of proceedings to have the plaintiff declared a vexatious litigant some time prior to the expiry of this date.

77. While Mr Mohareb challenged this claim (in that the proceedings to have him declared a vexatious litigant were not actually commenced until after the expiry of the 8 June 2016), he did not deny that there had been public discussion of this litigation of the kind referred to by Ms Vanderfield. He submitted that the time for the defendant to put on statements had passed and these proceedings should be listed for hearing immediately.

78. Litigants in this court fail to comply with timetables for a number of reasons. In my view, non-compliance because there is discussion in the public arena about having the opposing party declared a vexatious litigant is not such an unreasonable basis for failure to comply that the proceedings should be either set down for hearing regardless of the failure to comply or that the defendant should be denied any extension of time for compliance.

79. The plaintiff is anxious for his proceedings against Mr Booth to be heard first and separately from the proceedings for Mr Kelso because he believes Mr Booth will make admissions which will prove his case against Mr Kelso. I have drawn his attention to s 91 Evidence Act 1995 (NSW) in relation to the difficulties of tender of transcript of other proceedings in order to prove facts in issue, as well as other difficulties such as having to call all his witnesses twice and problems with use of documents under subpoenae (for example, the plaintiff has issued subpoenae only in proceedings 2015/201139 and none at all in his proceedings against Mr Booth). These are ultimately, however, matters for the list judge and trial judge; I note both parties seem to agree that it would be desirable for the same judge to hear both actions.

80. It is too early for this issue to be determined until all the evidence in both cases is complete. The parties did not propose a timetable and I do not propose to make any further orders in these proceedings in those circumstances. It will be a matter for the defendant to make such application as to the appropriateness of a timetable which would take into account any orders made in the Supreme Court proceedings concerning the plaintiff.

Documents under subpoena from the NSW Police and Mr van Mierlo

81. The Registrar noted the following in relation to the production of these documents under subpoena:

1. NSW Police: “Sensitive material – no access allowed without order of the court” (15 December 2015);

2. Mr van Mierlo: “No access until further order of the court” (27 April 2016).

82. I have no information as to why the Registrar noted these restrictions, but assume that these comments originate from statements and/or letters by the producing parties. The general rule is to permit access to documents under subpoena, and the Registrar does not (contrary to what the plaintiff claims) personally inspect these documents to see if access should be granted.

83. Mr van Mierlo and the NSW Police have not been made aware that this application for access to their documents has been listed today. I assume, in view of the Registrar’s notations, that one or both of them may wish to be heard. The documents under subpoena are not in court, and it was not until the hearing of this motion commenced that I was aware that access to these documents would be sought, so the documents were not available for inspection.

84. I think it best to defer access to these documents until a later date, so that the producing parties can be informed and have an opportunity to make submissions if they wish. The documents will remain in the subpoena registry in the interim.

Costs and other orders

85. I was not addressed on costs.

86. The plaintiff is not entitled to costs beyond the limited entitlement of a litigant in person to costs. However, he should not have to bear the costs of the application of the defendants in these proceedings for a stay. The order I will make is for no order as to costs in relation to this application.

87. The plaintiff has been unsuccessful in his other applications and costs should follow the event. I will grant liberty to apply.

88. I was not asked by either party to relist these proceedings. I have allocated a date of 20 October 2016 in the Defamation List for case management purposes. On that date, I will ask both parties to show cause why these matters should remain in the Defamation List, given the degree of delay and unreadiness as demonstrated by the procedural history, the subject matters of the claims, and the length and combativeness of the hearing when the plaintiff’s applications were finally ready to proceed.

Orders

1. Notice of Motion filed by the defendants in proceedings 2015/201139 and 2015/359339 for a stay of proceedings under s 67 Civil Procedure Act 2005 (NSW) dismissed, with no order as to costs.

2. Plaintiff’s application in proceedings 2015/201139 to add the named persons as second to sixth defendants dismissed.

3. Plaintiff’s application in proceedings 2015/201139 to amend the statement of claim dismissed.

4. Plaintiff’s application for proceedings 2015/359339 to be heard before proceedings 2015/201139 dismissed.

5. Plaintiff’s application in proceedings 2015/201139 for access to documents from the NSW Police and Mr van Mierlo (the subject of objections recorded by the Registrar) dismissed.

6. The plaintiff to pay the defendant’s costs in each of proceedings 2015/359339 and 2015/201139, save for the defendants’ application for a stay, with liberty to apply.

7. Proceedings stood over for further directions to the Defamation List on 20 October 2016, on which date the parties should show cause as to why proceedings 2015/359339 and 2015/201139 should not be transferred to the General List.

**********

Decision last updated: 12 September 2016