Mohareb v Kelso

Court of Appeal (NSW)|2017-07-17|Before: Basten JA, Simpson JA

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

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Substantive orders - misunderstanding applicant's case

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".
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.
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.
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.
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.
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]
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. ..."
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.
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.
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

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.
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.
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.
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.
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

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

Mohareb v Kelso [2017] NSWCA 98.
(2011) 81 NSWLR 771; [2011] NSWCA 324 at [14].
See Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 256-257 (Mason J); [1981] HCA 20.
Teoh (No 4) at [32].
(2001) 207 CLR 21; [2001] HCA 44.
Plaintiff's submissions in response (District Court), 15 June 2016 at par 5.
Supplement to applicant's summary of argument, 13 April 2017, par 15.
Mohareb at [20].
Applicant's submissions in support of notice of motion to vary orders made on 12 May 2017, pars 59-63.
Tcpt, CA 26/04/17, p 9(38).
Submissions on motion, pars 101, 122.
Mohareb at [34].
(2002) 54 NSWLR 333; [2002] NSWCA 82.
Mohareb at [30], referring to the judgment of the District Court at [67]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2017

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