Mohareb v Kelso (No 2)

[2017] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mohareb v Kelso (No 2) [2017] NSWCA 173
Hearing dates:	On the papers
Decision date:	17 July 2017
Before:	Basten JA; Simpson JA
Decision:	(1)   Dismiss the notice of motion filed 26 May 2017.  (2)   No order as to the costs of the motion.
Catchwords:	PRACTICE AND PROCEDURE – application to vary orders – order made refusing leave to appeal – application to substitute a grant of leave to appeal –application in effect to reopen hearing – no change of circumstances – no misapprehension by court of applicant’s case   PRACTICE AND PROCEDURE – costs – application to vary costs order –unsuccessful applicant ordered to pay costs – no sufficient basis to vary order
Cases Cited:	Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Mohareb v Kelso [2017] NSWCA 98 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; [2002] NSWCA 82 Teoh v Hunter’s Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Category:	Procedural and other rulings
Parties:	Nader Mohareb (Applicant) Alexander Edward Kelso (First Respondent) Saratoga Marine Pty Ltd (Second Respondent) John Alexander Kelso (Third Respondent) Leetec Pty Ltd (Fourth Respondent) Laurence Geoffrey Leeson (Fifth Respondent) Roderick Gerrard Smith (Sixth Respondent)
Representation:	Counsel: Applicant self-represented   Solicitors: Applicant self-represented
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. THE COURT: On 12 May 2017 the Court, as presently constituted, dismissed an application for leave to appeal from a judgment of Gibson DCJ in the District Court. That judgment had rejected an application by the applicant to amend his statement of claim, then (and still) pending in the District Court, in which he sought damages against the respondent, Alexander Kelso, in respect of alleged tortious conduct by Mr Kelso.

2. The proposed amendments sought to add fresh causes of action based on damage to the applicant’s property which had occurred after the commencement of the civil proceedings and responsibility for which the applicant sought to lay at the feet of the respondent. The application to amend also sought to join in the proceedings five additional parties who were said to be liable, either vicariously for the actions of the respondent, or directly for breach of their own duties owed to the applicant, but again based on the conduct of the respondent. In brief, the respondent was engaged (to use a neutral term) to operate a “Pink Water Taxi” on Pittwater, including trips between Church Point and Scotland Island, where the applicant lived.

3. For reasons set out in its earlier judgment,[1] the Court refused leave to appeal from the judgment in the District Court of 12 September 2016. The applicant was ordered to pay the respondent’s costs (and the costs of the parties sought to be joined) of the application in this Court.

   1. Mohareb v Kelso [2017] NSWCA 98.

4. The earlier judgment was delivered on 12 May 2017. On 26 May 2017 the applicant filed a notice of motion seeking to vary the orders made on 12 May 2017 by this Court. The proposed variations were, in substance, to grant leave to appeal (instead of refusing it) and to order that costs be paid by the respondents and other parties (instead of by the applicant), or that there be no variation of one order but that the other be varied. The motion in effect required a reopening of the hearing in order to reargue substantive issues disposed of by the orders of the Court.

5. The circumstances in which the Court will reopen its refusal of an application for leave to appeal are few in number and will generally fall into one of two categories. The first category is where there has been a material change of circumstances, relevant to the leave application, which rarely occurs. The second category involves demonstrable misunderstanding by the Court of a material aspect of the applicant’s case. Such an event is possible, and has occurred in cases where a litigant in person has struggled to identify a sufficient basis for a grant of leave.

6. The willingness of the Court to entertain such applications derives from the fact that a refusal of leave to appeal, in particular from an interlocutory judgment of the court below, cannot be a final order determining the rights of the parties and, accordingly, is not a final judgment. As noted by Handley AJA in Teoh v Hunter’s Hill Council (No 4),[2] “a renewed application for leave to appeal is technically competent”. As a practical matter, and indeed this was a reason why such orders have been sought to be treated as “final” and thus subject to a right of appeal,[3] repeat applications are most unlikely to succeed. By similar reasoning, applications to reopen leave applications are also most unlikely to succeed.

   2. (2011) 81 NSWLR 771; [2011] NSWCA 324 at [14].

   3. See Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 256-257 (Mason J); [1981] HCA 20.

7. It is appropriate to add that such an application will not gain support from the tender of material that was not provided to the Court on the first application, even if it had been before the judge from whose decision leave to appeal was sought. Where the new material had not been considered by the primary judge, the application to reopen an interlocutory judgment should be made to the primary judge.

8. The present application was largely devoted to rearguing points which had been raised and addressed in the earlier judgment of this Court.

9. There is no doubt that the present application must be rejected; the question is how much more should be said in that regard. On the one hand, as explained by Handley AJA (with the agreement of Allsop P and Beazley JA) in Teoh (No 4), in relation to repeat applications, “[t]he Court … has a duty to conserve its resources and ensure as far as possible that they are available for other litigants.”[4] That principle suggests that the court should be parsimonious in giving reasons for rejecting a reopening application, especially as it is not strictly appropriate to respond to argumentative submissions taking issue with the reasoning in the earlier judgment. On the other hand, there is a public interest in the transparency of the process by which such an application is rejected and, in relation to the applicant, there may be a practical benefit for the Court to seek once again to explain why his application for leave was unsuccessful. These reasons seek to steer a course between these partly conflicting considerations.

   4. Teoh (No 4) at [32].

Substantive orders – misunderstanding applicant’s case

10. The first basis for reopening identified in the written submissions filed on 26 June 2017 took issue with a statement that “the applicant submitted that it did not matter in this respect whether the respondent was employed in the business, or was an independent contractor.” The submissions did not trouble to identify the context of the statement but merely (a) denied that any such submission had been made and (b) affirmed that the applicant had submitted that the respondent was “for all intents and purposes an employee of the Pink Water Taxi business”.

11. There was no doubt that the applicant maintained a contention that the respondent was an employee of the business. In that context, the Court addressed both the difficulties in establishing liability for the criminal conduct of an employee and the difficulties in establishing that some aspects of the conduct alleged on the part of the respondent bore a sufficient relationship with his putative employment. Importantly, however, the matter to which the impugned statement was directed was an allegation of direct duty on the part of the proposed additional defendants, which appeared not to depend upon whether the respondent was an employee or an independent contractor, but rather on the proposed additional defendants having placed the respondent in a position where he could exploit a tendency to violence and aggression which was well known to the proposed defendants.

12. In written submissions made to the District Court (and included in the material before this Court), the applicant expressly sought to rely upon the case of Hollis v Vabu Pty Ltd. [5] That case concerned the liability of a courier service for the careless riding of a delivery cyclist who was an independent contractor of the respondent. The applicant’s submission referred to the observations of the High Court that “it was important that the appellant had established that the respondent knew of the couriers’ propensity to dis-obey traffic rules.” [6] Both before the District Court and this Court the applicant sought to maintain alternative claims against the proposed additional defendants based on (a) direct liability in negligence and (b) vicarious liability for the acts of an employee, namely the respondent. Thus the applicant complained in written submissions that “[i]n disregarding the Applicant’s primary plea in negligence, in favour of focusing entirely on the supposed inadequacies of the secondary alternative plea of vicarious liability”, the trial judge had erred. [7] It may be true that the applicant prevaricated as to which was the primary submission, but it was also true that the claims based upon a direct duty of care did not turn on the contractual relationship between the proposed additional defendants and the respondent, but on the conduct of the proposed additional defendants in giving the respondent a position in which he could give full rein to his violent propensities, of which they were said to be fully aware.

    5. (2001) 207 CLR 21; [2001] HCA 44.

    6.    Plaintiff’s submissions in response (District Court), 15 June 2016 at par 5.

    7.    Supplement to applicant’s summary of argument, 13 April 2017, par 15.

13. The assertions that this Court had either misunderstood or misstated the case presented by the applicant involved the taking of sentences here or there from the reasons, without reference to their context. The submissions in support of the motion (which exceeded in length the submissions which would have been permissible under the rules on a full appeal) provide no basis for thinking that the Court either misunderstood or failed to give appropriate consideration to the assertions of applicant.

14. Secondly, there was a thread running through the submissions which sought to derive factual propositions from material which would either have been inadmissible in evidence at a trial or which did not support the inferences sought to be drawn from it. For example, the applicant sought to rely upon a statement relating to a confrontation between the respondent and another person, as recorded in a police running sheet, where it was said that the respondent “runs his father [sic] share” of the Pink Water Taxi business. The applicant submitted that the police officer’s statement was evidence that the respondent was “being employed to run his father’s share of the business.” Even taking the document at face value, the word “employed” was inserted by the applicant; it did not appear in the officer’s note. More importantly, the officer’s note was wholly inadmissible to support any argument as to the contractual relationship between the respondent and his father.

15. As a separate matter, the Court had regard in its earlier judgment to a number of factors which, in the exercise of the Court’s discretion, militated against a grant of leave to appeal. One such element was that “as the trial judge explained, the proceedings have a history which, although not necessarily uncommon in relation to attempts by litigants in person to plead claims in legal proceedings, requires this Court to be more than usually circumspect in interfering with a ruling of a trial court with respect to procedural matters.”[8]

    8. Mohareb at [20].

16. The applicant appears to have read this passage as adopting as a reason for refusing leave statements by the primary judge that there had been delays caused by the applicant. [9] On that basis, the applicant noted that, in the course of the hearing of the original application, the following exchange had taken place: [10]

“APPLICANT: The other thing her Honour says that I was responsible for unacceptable delays. Every assertion of her Honour that I was responsible for unacceptable delays is incorrect, and I have evidence for it if your Honours want to see it, from the transcripts.

BASTEN JA: I don't think that was critical to the way that she disposed of the matter, was it?

APPLICANT: Well, I'm just making it just the case because I could see from the rules that it comes into the decision whether the person was responsible for undue delays. There's other errors as well. ...”

9.    Applicant’s submissions in support of notice of motion to vary orders made on 12 May 2017, pars 59-63.

10.    Tcpt, CA 26/04/17, p 9(38).

17. The question asked of the applicant in the course of the hearing was not, as he suggested, “rhetorical”; nor did the applicant dispute the suggestion within the question. More importantly, the passage in the judgment did not refer, expressly or implicitly, to delay as such, but rather referred to the difficulties in resolving pleading questions, in a context where the court is, in all circumstances, reluctant to interfere in interlocutory rulings as to practice and procedure. To the extent that the applicant was implying that he had been unfairly dealt with in this Court, there is no basis for the implication to be found in the transcript and judgment, read in combination and in context.

18. Otherwise, much of the material presented in the submissions on the motion was irrelevant. There were multiple references to the fact that, in 2016, the Attorney General unsuccessfully sought a declaration against the applicant under the Vexatious Proceedings Act 2008 (NSW). Further, there were suggestions that the rulings of the trial judge were based upon bias and hostility towards the applicant. No such allegation was raised on the application for leave to appeal.

19. No basis has been shown for reopening the application and varying the order dismissing the application for leave to appeal.

Order as to costs – claim that applicant succeeded

20. There remains the application to vary the order as to costs. Even if the order refusing leave were not to be varied, the applicant submitted that he should either have his costs of the application for leave to appeal (despite being unsuccessful) or there should be no order as to costs.

21. The submissions in support of those alternative outcomes were to be found in two propositions contained in the earlier judgment of the Court, both of which were described as favourable to the applicant. [11] The first proposition said to be favourable to the applicant was that there was “nothing to prevent the applicant from commencing a fresh proceeding against the respondent, making the additional allegations”. [12] The Court had further noted that such a course would likely involve consolidation or amalgamation of the two proceedings and additional costs. While it was undoubtedly a relevant consideration favouring the amendment proposed, this Court was not persuaded that it was appropriate to grant leave to appeal to consider whether there was in fact an error warranting the intervention of this Court. Furthermore, the observation was somewhat double-edged; the fact that such an alternative course remained available in the District Court was also a consideration militating against granting leave to appeal.

    11.    Submissions on motion, pars 101, 122.

    12. Mohareb at [34].

22. However, the significance of the observations was said to lie in the proposition that without such observations from this Court, no such course would have been permitted to the applicant. The statement as to the alternative course was controversial; it changed nothing. That is not a basis for varying the usual order as to costs.

23. The second ground relied upon in this context was a disagreement with the reasoning of the primary judge as to the relevance of TCN Channel Nine Pty Ltd v Anning, [13] in relation to damages based on a claim that the applicant had been “put in fear and greatly humiliated and embarrassed” by alleged conduct amounting to a trespass to goods. Referring to Anning, the primary judge had indicated that this possibility raised “novel issues of law”. [14] The point made by this Court was that the judge’s remark was not supported by Anning. That observation will not affect the outcome of any trial. A claim for damages for trespass to goods, based entirely upon the matters identified above, when the damage to the applicant’s property did not occur in his presence, will need to be addressed if the allegations are proved.

    13. (2002) 54 NSWLR 333; [2002] NSWCA 82.

    14. Mohareb at [30], referring to the judgment of the District Court at [67].

24. The observations of this Court do not provide a basis for varying the usual order as to costs when the application for leave to appeal is refused.

Conclusions

25. It follows that the motion must be dismissed. The respondent and the proposed additional defendants were not called upon to reply and there should be no order as to the costs of the motion.

**********

Endnotes

Decision last updated: 17 July 2017