Mohareb v Kelso

Court of Appeal (NSW)|2017-04-26|Before: Basten JA, Simpson JA

Solicitors: Applicant self-represented Coyne Legal (Proposed defendants) 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.]

Additional defendants

The respondent was alleged to operate a boat on Pittwater, near Scotland Island, known as "Pink Water Taxi". The proposed additional defendants were said to be the respondent's employer (in the case of Saratoga Marine), or persons who controlled the employer (in the case of John Alexander Kelso, being the father of the respondent) or, in the case of the other three parties, persons who were in partnership with Saratoga Marine in the operation of the water taxi business. The applicant claimed that the respondent's employer, and particularly his father who controlled Saratoga Marine, knew that the respondent was aggressive and violent and the partners were therefore all responsible for his aggressive and violent conduct whilst in their employ.
The judge dismissed the application to add defendants on the primary basis that, with two exceptions, it did not appear that the actions of the respondent were carried out in the course of his employment. The exceptions were the first allegation, which was that the respondent used his water taxi to swerve sharply towards the applicant's boat, putting the applicant in fear, and a second allegation that the respondent argued with the applicant in relation to the applicant's failure to keep his dogs on a leash. The claims as to property damage, which were more serious, were not pleaded in such a way as to demonstrate any particular connection with his employment.
The judge identified the difficulties which would arise in seeking to sue an employer in such a case, by reference to the judgments of the High Court in Deatons Pty Ltd v Flew [2] and New South Wales v Lepore. [3] She noted that such a claim would also encounter difficulties in relation to causation, which were simply not addressed in the pleading; the problems were substantive and not merely matters of expression.
Whether any of these allegations can be established and whether, if established, they would, in combination, give rise to liability on the part of the proposed additional defendants, are not matters which can or should be addressed at this stage. The applicant's case for leave to appeal turned on whether, if established, these elements would, arguably, give rise to a cause of action. Even if that were accepted, there were other considerations to be weighed in the balance, including the orderly conduct of the trial, given the additional issues and parties. Against those other factors, it would be necessary to consider that if the claims against the respondent were established, but the proposed additional defendants were not joined, they would not be bound by any findings in the proceedings as presently constituted. However, if joined, it might be possible to avoid the complexity which their joinder would produce by directing that certain issues (such as the liability of the respondent) be determined before other issues. If that course were taken, the respondent and the additional defendants would be in the same interest and issues particular to the additional defendants could be dealt with subsequently, if and when the need arose.
The applicant contended that the reasoning of the trial judge in this respect dealt only with the possible liability of the additional parties as employers, based on their vicarious liability for the conduct of the respondent. The applicant said that his case in the District Court included a broader allegation that the additional parties were liable because they created the opportunity for the respondent to provide services to members of the public (including the residents of Scotland Island) in circumstances where he would not otherwise have obtained work because of his aggressive and violent tendencies. Further, the applicant submitted that it did not matter in this respect whether the respondent was employed in the business, or was an independent contractor. [4] The additional parties had a duty of care, he said, requiring them to control the activities of the respondent and prevent the exercise of his criminal proclivities.
The very real difficulties in formulating a duty of care with respect to the criminal activities of third parties are illustrated by the reasoning in Modbury Triangle Shopping Centre Pty Ltd v Anzil. [5] In rejecting the proposition that the occupier of a car park owed a duty to those who used the car park to maintain lighting so as to deter assaults by unknown criminals, Chief Justice Gleeson noted that, "[i]f people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable." [6] Nevertheless, the Chief Justice conceded: [7] "There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it."
The question sought to be raised on this application is whether the applicant's case could arguably fall within the exception to the general principle. [8]
To this discussion should be added reference to the recent exposition of these principles by the High Court in Prince Alfred College Inc v ADC. [9] The circumstances of the present case were far removed from those in Prince Alfred College, which involved abuse of a boy in a boarding school. The facts underlying the present claims included the following: (a) the business, Pink Water Taxi, provided an essential service for residents of and visitors to Scotland Island; (b) the employment (in a generic sense) of the respondent as the operator of a water taxi provided the opportunity for the commission of wrongful acts against the applicant; (c) the wrongful acts complained of were not entirely unconnected with the respondent's employment, because it was in the course of that employment that he encountered the applicant and took a set against him; (d) the reasons for taking a set against the applicant arose out of the circumstances of his employment, namely transporting the applicant and his dogs on the water taxi and the place used by the applicant to moor his own boat, and (e) the water taxi was used to obtain access to the applicant's boat and cause it damage.
To say that the duty arose whether the respondent was an employee of the Pink Water Taxi business, or was an independent contractor, must mean that the case based on a direct duty provided a stronger basis for joining the additional defendants than did the case based on vicarious liability rejected by the primary judge. However, if there were an arguable case based on vicarious liability, the alternative direct duty would not be necessary; if the case based on vicarious liability remains, as the primary judge held, not reasonably arguable, and if the alternative basis were a more remote possibility, leave to appeal would necessarily be refused.
The alternative case is indeed a more remote possibility. First, the power to control an employee is an essential element of an employment relationship. If, on the basis of the cases referred to by the primary judge, an employer would not be liable, it is more implausible that a principal would be liable for the same acts committed by an independent contractor. There is no doubt that a business providing services to customers will owe a duty of care to those customers which will, in some circumstances, render the business liable for the conduct of its employee. However, it is difficult to see how the applicant's case can be strengthened by relying upon a duty of care owed by the owners of the business to the customers, which does not involve vicarious liability for the conduct of their employee.
Finally, the same, if not greater, problems of causation arise in relation to the criminal activities of the respondent which take place outside the work being undertaken for the business run by the proposed additional defendants.
In short, the primary judge may not have considered the case on the basis now presented, but the conclusion reached would not have been different had she done so.
It is convenient to note one factual error allegedly made by the trial judge in relation to the proposed additional defendants. She stated of one (Mr Leeson) that he was resident in the UK. The applicant said that that was a factual error and that he was in fact resident on Scotland Island. However, it is clear that the judge would not in any event have joined him as an additional defendant, as she did not the other proposed defendants.
A trial judge dealing with proposed amendments to a pleading will have a number of conflicting considerations to bear in mind. As the primary judge rightly noted, "a paucity of evidence is not a reason to refuse a party leave to amend." [10] Further, amendments should be permitted where they appear to be appropriate and necessary to ensure that the issues in dispute are dealt with in an efficient and timely fashion. However, these are but two considerations. The addition of parties increases the number of issues likely to be raised by proceedings; as the primary judge noted, this was not simply a matter of joining an employer but of joining five additional parties who were not necessarily in the same interest. Of the three individuals sought to be joined, one, Mr Kelso Snr, was said to reside in Queensland. (Nevertheless, as noted above, procedures could be adopted which would limit the potential for prejudice to all parties.)
There are other factors which stand in the way of a grant of leave to appeal on this aspect of the judgment. First, the amount in issue, although by no means insignificant, and is likely to fall short of the statutory floor of $100,000, meaning that the applicant would need leave to appeal not only because the judgment is interlocutory, but also because of the amount likely to be involved in the proceedings. [11]
Secondly, with one possible exception, the errors alleged by the applicant raise no issue of principle. The exception, being the alleged duty owed by the business partners in the water taxi business for the acts of the respondent, has insufficient merit to warrant a grant of leave to challenge the refusal to allow the joinder. Even if there were an arguable duty owed to the residents of the area generally, the problems of causation noted by the trial judge would be formidable.
Thirdly, 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. The inadequacies in the pleadings and the difficulties in running any trial would be multiplied by the addition of the proposed defendants. These factors reflect the reluctance of the court to grant leave to appeal an interlocutory ruling on a matter of practice and procedure and weigh against a grant of leave in this case.
Even if error could be shown, and these various hurdles overcome, there was a further potentially fatal flaw in the process: none of the proposed additional defendants was a party to the leave application, as they should have been. [12] However, they briefed counsel and, by leave, were heard in opposition to the application. They also sought to rely on an extract of the ASIC Business Name register for "Pink Water Taxi No 2", which had been before the trial judge (with other similar records for related names) and showed the sole registered proprietor of that business name (since 23 November 2012) as Alexander Kelso (the respondent). That document did not disprove the existence of the partnership, but cast some doubt on the allegation that the respondent was an employee of the partners.
In these circumstances it cannot be said that the decision of the primary judge was clearly wrong in refusing leave to join the additional parties. Leave to appeal from that order should be refused.

Additional claims

The applicant sought leave to appeal the refusal of the judge to permit the inclusion of four additional claims with respect to (a) the removal of the ignition barrel and the puncturing of a tyre of the applicant's car; (b) damage to the applicant's electrically assisted bicycle; (c) the theft of the applicant's car number plates, and (d) the smashing of the rear left window of the applicant's car. These events were alleged to have occurred in the first half of January 2016, on 31 March 2016, on 24-25 April 2016 and on 29 April-1 May 2016. The primary judge dealt with these claims collectively in the following passages: "[70] … 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 the 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."
While the applicant was not required to plead the evidence upon which he relied to maintain the claims, in seeking to amend a statement of claim to add new claims, the judge was entitled to take into account the absence of assertions linking the respondent to the alleged damage, and the failure properly to plead the claim in damages.
The proceedings in the District Court were commenced in 2015, and the previous claims related to conduct commencing in April or May 2013 and continuing until late September 2014. All of the allegations involved criminal activity on the part of the respondent. There was much to be said for the view that the trial should proceed on the allegations originally pleaded before any further allegations, relating to conduct which occurred after the proceedings commenced, were considered. Although s 64(3) of the Civil Procedure Act 2005 (NSW) permits an amendment which adds a cause of action that has arisen after the commencement of the proceedings, such amendments fall into a different category from those which are necessary in order to determine the real questions already raised by the pleadings. Further, refusal of the amendments adding new causes of action did not preclude the applicant from commencing further proceedings, if thought appropriate. The Court was well within the range of its discretionary powers in refusing the amendments in the present case.
In these circumstances, there is no basis for this Court to intervene in the exercise by the trial judge of her discretionary powers of case management. Leave to appeal must be refused; the applicant must pay the respondent's costs of the application (as a litigant in person) and the costs of the parties sought to be joined.
SIMPSON JA: The relevant facts and circumstances are set out in the judgment of Basten JA. In short (relevantly) the applicant sues the respondent (nominating trespass as the cause of action), alleging various acts of vandalism to the property of the applicant by the respondent. He also makes two assertions of behaviour threatening or intimidating the applicant, and/or assault (pars (1) and (3) of the Draft Amended Statement of Claim).
By notice of motion the applicant sought leave to amend the Statement of Claim by:

adding four subsequent counts of trespass to property to the existing claim against the respondent; and
adding five named defendants to the proceedings. The proposed amendments were contained in a Draft Amended Statement of Claim. In separately numbered paragraphs, the applicant itemised 14 acts of alleged trespass, of which 12 were trespass to property, and two (pars (2) and (3)) could be construed as trespass to the person. Paragraphs (11) to (14) pleaded the additional acts of trespass that the applicant sought to have included in the proceedings.

Additional counts of trespass
The primary judge refused leave to the applicant to amend the Statement of Claim by the addition of the four further counts. She gave four reasons for doing so. In my opinion, each of the reasons is arguably flawed. I set out below the reasons, and the basis upon which, in my opinion, they are questionable. (i) The proposed additional paragraphs did not (as was the case in respect of some of the earlier pleaded claims) state that the respondent was observed carrying out the acts of trespass, or "set out the facts and matters relied upon to assert that [the respondent] and not some other person performed these acts". The reasoning is arguably flawed because a pleading is required to plead a summary of the material facts upon which the pleading party relies, and not the evidence by which those facts are to be proved: Uniform Civil Procedure Rules 2005 (NSW) r 14.7. That there was no pleading that the respondent was observed engaging in the acts, and no identification of facts and matters relied upon to assert that it was the respondent and not another person who performed the acts was arguably not a reason for refusing leave to add the four instances of tortious conduct. (ii) The proposed pleading failed to particularise any claim for damage to property in any acceptable form ([71]). Her Honour said: "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 difficulty I perceive with respect to this reasoning is as follows. From the Draft Amended Statement of Claim it can be discerned that initially the applicant claimed "damages, including aggravated damages". In the Draft Amended Statement of Claim that claim is deleted, and the following substituted: "31 Punitive damages for trespass and assault. The First Defendant's conduct was a deliberate and calculated campaign by the First Defendant to intimidate and harass the Plaintiff and to cause the Plaintiff to be in constant fear for his own personal safety and the safety of his personal property and were in contumelious disregard of the Plaintiff's rights for which he claims and [sic] entitlement to punitive damages." Each paragraph of the original pleading, and each paragraph of the proposed additional claims, concludes with the words: "Whereby the plaintiff was put in fear and greatly humiliated and embarrassed."
Of this, the primary judge said: "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 [2002] NSWCA 82] …"
Anning was a case in which the plaintiff (landowner) claimed damages, including damages for trespass to land, for hurt to feelings, humiliation, affront to dignity and mental trauma (at [23]).
Spigelman CJ (which whom Mason P and Grove J agreed) said: "104 What is a natural and probable consequence arising from a trespass to land must depend on all the circumstances of a case. It is essentially a question of fact … 105 It is unnecessary to decide whether or not damages for personal injury and, specifically, psychiatric injury may, as a matter of law, be recovered in an action for trespass to land. It is undesirable to lay down a general rule that such damages cannot be recovered … 106 It is undesirable to limit the scope of recoverable damage to a list of categories intended to exhaustively state the kinds of damage that may be recoverable …" On the facts of that case, the appeal was allowed insofar as damages were awarded for "mental trauma" ([114]).
There is no reason to think that what was said about a claim for damages of the nature claimed in Anning is not applicable to a claim for damages of essentially the same nature arising out of an alleged trespass to property, as distinct from trespass to land. It was, therefore, in my opinion, arguably erroneous to characterise the applicant's claim for damages as one raising a novel issue of law. Even if it did, novelty is not an adequate reason for denying a plaintiff an opportunity to pursue the claim, providing the claim is reasonably arguable. Anning suggests that the applicant's claim is reasonably arguable. (iii) The claim for punitive damages was inadequately pleaded. Her Honour did not identify the inadequacy, merely saying (at [72]) that the claim should not be permitted until it was pleaded "with more precision". It is arguable that par [31] of the Draft Amended Statement of Claim did adequately identify the basis on which punitive damages are claimed. (iv) There are inadequacies in the existing claim. Her Honour merely said (at [72]) that the claim for punitive damages should not be permitted "until such time as the existing claims have been properly pleaded". What is questionable about this reason is that, so far as the material before this Court went, there was no challenge to the pleading by the respondent, and, again, the asserted inadequacies are not identified. It seems difficult to contend that the pleading is not such as to convey to the respondent what the applicant alleges.
There is nothing to prevent the applicant from commencing a fresh proceeding against the respondent, making the additional allegations, with a consequent duplication in proceedings and in costs. Were he to do so, the almost inevitable consequence would be consolidation or amalgamation of the two proceedings, with all the costs associated with that course. No consideration appears to have been given to this discretionary factor. It is arguable that the more convenient course would be to allow all claims to be litigated together, and that, therefore, the refusal to allow this amendment was (in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense) an error of discretion.
However, an application for leave to appeal against an interlocutory order requires more than the identification of possible error. The principles have often been stated, for example in The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 by Bathurst CJ (citing Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164): "13 Generally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable."
Notwithstanding that there may have been errors in the reasoning to the conclusion, the application fails to meet the relevant tests for a grant of leave. For that reason, I agree with Basten JA that leave to appeal against this order should be refused.

Additional defendants
The principal reason given by the primary judge for refusing leave to add the further defendants was that it did not appear that the alleged conduct of the respondent was carried out in the course of his employment, thus undermining the applicant's claim that the proposed defendants were vicariously liable for that conduct.
In fact, the applicant's claim against those proposed defendants went well beyond a claim of vicarious liability for the tortious (or criminal) conduct of an employee. In the Draft Amended Statement of Claim, the applicant sought to identify the relationship between each of the proposed defendants and the respondent (at par [15]); he pleaded that he had, following each occasion of vandalism, informed the proposed third, fifth and sixth defendants of the conduct (par [16]), and that each of those proposed defendants was aware of the violent, aggressive and criminal propensities of the respondent. He therefore alleged negligence against each proposed defendant, which he particularised (I summarise and paraphrase) first, as exposing the applicant to a risk of injury and harm that could have been avoided by reasonable care, and, secondly, failing to devise any means of dealing with complaints about the respondent's conduct.
The reference to Anning, above, was equally applicable to the primary judge's reasoning in respect of this claim, and is, in my opinion, equally arguably erroneous - indeed, possibly more so, because damage caused by humiliation or hurt to feelings is in no way novel in a negligence action.
This is, in my opinion, a further reason which was arguably erroneous in the approach taken by the primary judge. Her Honour said: "66 … 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." The "misconceptions of law" were not identified, unless they were based on what was seen as a novel claim for damages.
Notwithstanding the above, there are reasons why leave to appeal against this order ought to be refused.
Reduced to its essence, the claim the applicant seeks to make against the proposed additional defendants is that each of them was aware of the respondent's alleged proclivities, and, notwithstanding that knowledge, placed him in a position that gave him the opportunity to engage in the tortious or criminal conduct that the applicant asserts against him. A necessary element of any claim in negligence is an assertion that the defendant owes the plaintiff a duty of care. Nowhere in the proposed pleading does the applicant identify the duty of care upon which he asserts the negligence is based. The duty of care asserted by the applicant does not fit readily into any recognised category. That is not necessarily fatal: a duty of care may arise in circumstances where one has not previously been recognised: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] 75 NSWLR 649; [2009] NSWCA 258 at [93]-[110]. But, if that is to be done, it would be necessary to identify the nature of the duty with precision. That has not been done in the present Draft Amended Statement of Claim. This is, in my opinion, a clear assertion of a novel duty of care as discussed by Allsop P in Stavar. However, in written submissions provided at the hearing, the applicant said: "13 The proposed claims did not articulate a novel claim or duty of care (and it was not alleged below that they did). For this reason the matters set out in [Stavar] and Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 per Leeming JA at [25]-[28] were never addressed."
That, in my opinion, is sufficient reason to refuse leave to appeal against the decision to refuse leave to add the additional defendants on the basis of the pleading in the Draft Amended Statement of Claim. The claim against them could, it seems to me, only be based upon a novel duty of care; not only was the duty of care not pleaded or identified, it is now acknowledged by the applicant that the relevant issues were not addressed at first instance. There could be no error in refusing leave to amend on that basis.
For these reasons, in my opinion, leave to appeal against the refusal to permit the addition of the five further defendants on the basis of the pleading in the Draft Amended Statement of Claim should be refused.
Accordingly, I agree with Basten JA that the summons seeking leave to appeal should be dismissed.

Endnotes

Mohareb v Kelso [2016] NSWDC 208, at [55].
(1949) 79 CLR 370.
(2003) 212 CLR 511; [2003] HCA 4.
Reference was made to Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44.
(2000) 205 CLR 254; [2000] HCA 61.
Modbury Triangle at [28].
Modbury Triangle at [30].
See also Modbury Triangle at [43] (Gaudron J); [117] (Hayne J), and [140] (Callinan J, adopting the reasoning of Dixon J in Smith v Leurs (1945) 70 CLR 256 at 261-262).
[2016] HCA 37; 90 ALJR 1085 at [80]-[83] (French CJ, Keifel, Bell, Keane and Nettle JJ).
Mohareb at [59].
Supreme Court Act 1970 (NSW), s 101(2)(r).
Uniform Civil Procedure Rules 2005 (NSW), r 51.4(1)(a). 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: 12 May 2017

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