Mohareb v Kelso; Mohareb v Booth

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Case Copied 53 min read

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…
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Details
Case
[2016] NSWDC 208
Decision Date

CaseChat Overview and Summary

In the matter of Mohareb v Kelso and Mohareb v Booth, the plaintiff sought damages for alleged assault and trespass to goods against two defendants. The proceedings were heard by the Supreme Court of New South Wales. The defendants applied for a stay of the proceedings on the basis that the plaintiff was the defendant in other proceedings under the Vexatious Proceedings Act 2008 (NSW) which were to be heard shortly. The plaintiff applied to amend the statement of claim and to join five new parties on the basis of negligence and/or vicarious liability for the defendant's acts, alleging they were his employers. The plaintiff also applied for one of the proceedings to be heard before the other. The court was required to decide whether the defendants' acts related to their employment, whether the claims were sufficiently pleaded, and whether the applications should be granted.

The court dismissed the applications for a stay of proceedings, finding that the plaintiff's vexatious proceedings were not sufficiently similar to the present proceedings to warrant a stay. The court also dismissed the application to join additional parties and amend the statement of claim, finding that the claims were not adequately pleaded. The court found that the plaintiff had not demonstrated that the defendants' acts were related to their employment, and that the claims against the additional parties were not sufficiently pleaded. The application for one of the proceedings to be heard before the other was also dismissed. The court found that the applications were an abuse of process and that the plaintiff had not shown sufficient grounds to warrant the transfer of the proceedings to the General List.

The court ordered that the notice of motion filed by the defendants for a stay of proceedings be dismissed, with no order as to costs. The plaintiff's application to add the named persons as second to sixth defendants and to amend the statement of claim were also dismissed. The plaintiff's application for proceedings 2015/359339 to be heard before proceedings 2015/201139 was dismissed. The plaintiff's application for access to documents from the NSW Police and Mr van Mierlo was dismissed due to objections recorded by the Registrar. The plaintiff was ordered to pay the defendants' costs in each of the proceedings, save for the defendants' application for a stay, with liberty to apply. The proceedings were 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.

Orders

Orders of the court

(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.

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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