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District Court 12 September 2016

Mohareb v Kelso; Mohareb v Booth

[2016] NSWDC 208

Other
TORT APPLICATION REFUSED WHETHER CLAIMS SUFFICIENTLY PLEADED APPLICATIONS DISMISSED

Citation: Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208
Court: District Court of New South Wales
Date: 12 September 2016
Judge: Gibson DCJ

Background

The plaintiff brought two separate sets of proceedings against neighbours and fellow residents of Scotland Island, a boat-access residential area on the Central Coast of NSW. The first proceedings (2015/201139) were commenced against a young man alleged to have engaged in "waterway rage" and a series of acts of vandalism between 2013 and 2014. The second proceedings (2015/359339) were brought against a different neighbour. Both claims were essentially tortious, involving allegations of assault and trespass to goods.

These proceedings formed part of a broader pattern of litigation by the plaintiff against Scotland Island residents, including earlier concluded proceedings against a father-and-son pair and a defamation and assault claim against another couple. The plaintiff was also the subject of a pending application by the NSW Attorney-General under the Vexatious Proceedings Act 2008 (NSW), listed for hearing in October 2016.

Several interlocutory applications came before the court simultaneously: the defendants sought a stay of both proceedings pending resolution of the vexatious proceedings application, while the plaintiff sought to join five new defendants, amend his statement of claim, control the sequencing of the hearings, and obtain access to subpoenaed documents.

  • Whether both proceedings should be stayed under s 67 of the Civil Procedure Act 2005 (NSW) pending the outcome of the vexatious proceedings application against the plaintiff
  • Whether five additional parties should be joined to the first proceedings on the basis that they were the defendant's employers and thus vicariously liable for his alleged conduct
  • Whether the statement of claim in the first proceedings should be amended to include further claims for assault and trespass to property
  • Whether the second proceedings (against Mr Booth) should be heard before the first proceedings (against Mr Kelso)
  • Whether the plaintiff should be granted access to documents produced on subpoena by NSW Police and another individual

Decision

Stay application: Gibson DCJ refused the defendants' application to stay both proceedings until the vexatious proceedings application was finalised. The mere pendency of vexatious proceedings does not automatically justify a stay of other litigation. No costs order was made on this application, as the court considered the plaintiff should not bear the defendants' costs of an unsuccessful application.

Joinder of additional defendants: The plaintiff sought to join five persons and corporations alleged to be employers of the first defendant, on the basis of vicarious liability and negligence. The court refused the application. The alleged conduct (waterway incidents and vandalism directed at a neighbour) bore no sufficient connection to any employment relationship, and the claims as pleaded were not adequately particularised. The court's analysis drew on established principles from cases including Deatons Pty Ltd v Flew (1949) 79 CLR 370 and NSW v Lepore (2003) 212 CLR 511, which require a close connection between an employee's tortious acts and the nature of their employment before vicarious liability arises. The conduct alleged here did not meet that threshold.

Amendment of statement of claim: The application to amend to include further acts of trespass and assault was also refused. The court found the proposed amendments were insufficiently pleaded and noted concerns about delay and the cumulative effect of the plaintiff's litigation approach.

Sequencing and document access: The application for the Booth proceedings to be heard before the Kelso proceedings was dismissed. The application for access to documents produced by NSW Police and another individual was also deferred rather than granted outright, so that the producing parties could be informed and given an opportunity to make submissions.

The court flagged at the conclusion of its reasons that it would require both parties to show cause at the next directions hearing why the proceedings should not be transferred from the Defamation List to the General List, given the subject matter of the claims and the degree of procedural delay.

Orders Made

  • Defendants' Notice of Motion for a stay of proceedings in both 2015/201139 and 2015/359339 under s 67 Civil Procedure Act 2005 (NSW): dismissed, with no order as to costs
  • Plaintiff's application to join named persons as second to sixth defendants in proceedings 2015/201139: dismissed
  • Plaintiff's application to amend the statement of claim in proceedings 2015/201139: dismissed
  • Plaintiff's application for proceedings 2015/359339 to be heard before proceedings 2015/201139: dismissed
  • Plaintiff's application for access to documents from NSW Police and Mr van Mierlo in proceedings 2015/201139: dismissed
  • Plaintiff to pay the defendants' costs in each of proceedings 2015/359339 and 2015/201139, except in relation to the defendants' stay application, with liberty to apply
  • Both proceedings stood over to the Defamation List on 20 October 2016, at which point parties were to show cause why the proceedings should not be transferred to the General List

Key Takeaways

  • A pending application under the Vexatious Proceedings Act 2008 (NSW) does not, of itself, provide sufficient grounds for a court to stay other proceedings brought by the same person under s 67 of the Civil Procedure Act 2005 (NSW).
  • Vicarious liability for tortious acts requires a close and sufficient connection between the employee's conduct and the scope or nature of their employment. Acts of personal aggression or vandalism directed at a neighbour are unlikely to satisfy this test, even where the alleged tortfeasor is employed by a proposed defendant.
  • Where proposed amendments to a statement of claim are inadequately particularised, the District Court confirmed its power to refuse leave to amend, particularly in proceedings already affected by significant delay.
  • A plaintiff who is unsuccessful on interlocutory applications will ordinarily bear the costs of those applications, even where they are a litigant in person with a limited costs entitlement.
  • Courts retain active case management powers to question whether proceedings are listed in the correct list, and may require parties to justify continued placement in a specialist list such as the Defamation List where the subject matter and procedural history suggest otherwise.

Legislation and Cases Referenced

Legislation:
- Civil Procedure Act 2005 (NSW), ss 61, 67, 73
- Vexatious Proceedings Act 2008 (NSW)
- Crimes Act 1900 (NSW), s 318
- Evidence Act 1995 (NSW), s 91

Cases:
- 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; (No 2) [2015] NSWDC 141; (No 3) [2016] NSWDC 38; [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