Mohareb v Saratoga Marine Pty Ltd

Court of Appeal (NSW)|2020-08-06|Before: Bell P

Principal judgment Parties: Nader Mohareb (Applicant) Saratoga Marine Pty Ltd (First Respondent) John Alexander Kelso (Second Respondent) Leetec Pty Limited (Third Respondent) Laurence Geoffrey Leeson (Fourth Respondent) Roderick Gerrard Smith (Fifth Respondent) Alexander Edward Kelso (Sixth Respondent) Representation: Counsel: I J King (Second Respondent)

N Mohareb (Applicant) (In person) MCW Lawyers Pty Ltd (Second Respondent) R G Smith (Fifth Respondent) (In person) File Number(s): 2020/00014342 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 20 December 2019 Before: Curtis ADCJ File Number(s): 2015/00201139; 2016/00292350; 2017/00227359

[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.]

Judgment

BELL P: By Summons filed on 20 March 2020, Mr Nader Mohareb (Mr Mohareb) seeks leave to appeal from a decision of Curtis ADCJ (the primary judge) of 20 December 2019.
In that decision, the primary judge entered a verdict for the defendants in relation to an Amended Statement of Claim which had been filed on 8 October 2018 asserting that the defendants, each trading under the title Pink Water Taxis, were liable to Mr Mohareb in negligence for damage and personal injury caused by the actions of Mr Alexander Kelso (Mr Kelso) between April 2013 and 2017 in damaging Mr Mohareb's boat and motor vehicles, and attacking him on the evening of 4 December 2017.
By notice of motion dated 6 July 2020, Mr Mohareb also seeks leave to amend the Summons seeking leave to appeal in order to add an additional respondent, seeks to expand the Summons (and to this end, served a Proposed Amended Summons Seeking Leave to Appeal with prolix grounds of appeal running to some 30 pages) and seeks an extension of time to appeal from earlier decisions of the primary judge "of the trespass component" of four separate and additional proceedings in the District Court of New South Wales. Two of these judgments were given as long ago as 2018.
As Mr Mohareb recognised, he needed an extension of time to seek leave to appeal from those decisions and, to that end, filed and served an affidavit of 6 August 2020, the day on which the applications to amend and for leave to appeal were heard, in support of the grant of an extension of time.
The application to amend the Summons for Leave to Appeal, including the necessary extensions of time which would be required for that course, should be rejected. No valid reason has been advanced for an extension of time or for the addition of a further respondent to the application for leave to appeal.
There is no procedural justification or legitimate basis to seek to join up in these proceedings appeals or applications for leave to appeal from different judgments in different proceedings from those the subject of the current application for leave to appeal.
To the extent Mr Mohareb calls in aid other proceedings in which he has been involved as an explanation for delay or to justify an extension of time, Mr Mohareb has been a very regular litigant in this Court as well as in the District Court for a number of years: see Mohareb v Fairfax Media Publications Pty Limited; Mohareb v Harbour Radio Pty Limited [2019] NSWSC 1685 (29 November 2019); Mohareb v Harbour Radio Pty Limited; Mohareb v Fairfax Media Publications Pty Limited; Mohareb v State of NSW [2019] NSWSC 270 (15 March 2019); Mohareb v Harbour Radio Pty Ltd; Mohareb v Fairfax Media Publications Pty Ltd [2018] NSWSC 1992 (20 December 2018); Mohareb v State of New South Wales [2018] NSWSC 1599 (23 October 2018); Mohareb v Palmer (No 2) [2018] NSWSC 400 (3 April 2018); Mohareb v Palmer [2017] NSWSC 1491 (1 November 2017); Mohareb v Fairfax Media Publications Pty Ltd (No 3) [2017] NSWSC 645 (24 May 2017); Mohareb v Harbour Radio Pty Ltd (No 2) [2017] NSWSC 676 (15 May 2017); Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546 (28 April 2017); Mohareb v Fairfax Media Publications Pty Limited [2017] NSWSC 288 (17 March 2017); Mohareb v Harbour Radio Pty Ltd [2017] NSWSC 353 (17 February 2017); Mohareb v Jankulovski [2014] NSWSC 745 (10 June 2014); Mohareb v Jankulovski [2014] NSWSC 767 (6 June 2014); Mohareb v Jankulovski [2014] NSWSC 451 (17 April 2014); Mohareb v Jankulovski [2013] NSWSC 1300 (13 September 2013); Mohareb v Jankulovski [2013] NSWSC 850 (27 June 2013); Mohareb v Jankulovski [2012] NSWSC 487 (4 May 2012). This list does not include proceedings brought in the District Court.
The point of the reference to Mr Mohareb's extensive litigious history in the context of his application to amend the Summons and for an extension of time is that, to the extent that Mr Mohareb seeks to rely on his engagement on other matters to justify the very significant delay in seeking leave to appeal from the primary judge's separate decisions made in 2018 in respect of four separate proceedings, it is not as though Mr Mohareb was either ignorant of legal rights or unfamiliar with the process and procedures of this Court.
Time limits within which to make applications for leave to appeal or to appeal from decisions form an important part of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and are designed not only to ensure the orderly and timely conduct of proceedings, but mark a point at which a successful party may proceed on the reasonable assumption that litigation on the points resolved by the lower court proceedings have come to an end. Finality is a very important value in the law and the administration of justice.

The proceedings below

As outlined at [2] above, the primary judge entered a verdict for the defendants in the proceedings below, finding that the defendants, each trading under the title Pink Water Taxis, were not liable to Mr Mohareb in negligence for damage and personal injury caused by the actions of Mr Kelso.
The business name, Pink Water Taxis, was registered on 8 April 2004 jointly by Saratoga Marine Pty Ltd (Saratoga, the First Respondent) which was a company controlled by Mr John Kelso (the Second Respondent), a company controlled by Mr Laurence Geoffrey Leeson (Mr Leeson, the Fourth Respondent) and Mr Roderick Smith (Mr Smith, the Fifth Respondent). Saratoga employed Mr Kelso, the son of Mr John Kelso, as its water taxi driver.
By Amended Statement of Claim filed on 8 October 2018, Mr Mohareb pleaded that the defendants: "…employed Mr Alexander Edward Kelso in the full knowledge of his deeply ingrained propensity to violence, and to bullying others, and this they did for the purpose of providing Mr Kelso with secure and guaranteed employment after his idiosyncratic violent character had rendered him unemployable. The fact that Mr Alexander Edward Kelso would behave wildly and commit criminal acts was attended by such a high degree of foreseeability and predictability that it imposed a duty of care on the defendants to take reasonable steps to prevent it".
The primary judge held that the duty pleaded by Mr Mohareb at [12] above had "essential problem[s]".
First, the primary judge held that Mr Mohareb failed to prove that before April 2013, the defendants knew Mr Kelso to be a man with "a deeply ingrained propensity to violence".
Secondly, an essential problem as to causation arose, as the primary judge noted that: "[a]part from one critical incident concerning the generation of unsettling waves, the actions of Mr Kelso complained of were completely independent of Mr Kelso's operation of his water taxi".
The primary judge noted that Mr Mohareb's submission that causally, if Mr Kelso had been stopped from participating in the taxi service, he would have left Scotland Island, and the taunts and the assaults said to have been directed to Mr Mohareb would thus have ceased, was "just too remote a chain of causation".
After outlining the relevant evidence relied upon by Mr Mohareb, the primary judge concluded that: "I am not satisfied that those incidents, again on the Briginshaw test, indicate that Mr Kelso was prone to violence. In conclusion, I am unable to find that even if there were a duty, and even if the defendants had complied with the suggested precaution of telling Mr Kelso to behave himself, or excluding him from the collaboration, that the damage suffered by Mr Mohareb, or his injuries, were caused by that failure. There must be a verdict for the defendants".
On the same day as publishing his reasons for judgment, the primary judge also published separate reasons (the recusal judgment) in relation to a Notice of Motion filed by Mr Mohareb on 7 June 2019 in the course of the proceedings in which, inter alia, Mr Mohareb sought orders that the primary judge recuse himself because of apprehended and actual bias against him.
In the recusal judgment, the primary judge held that, in relation to the various interlocutory rulings which Mr Mohareb referred to which were made inconsistently with his desired results, in each case his Honour had given reasons, and that "[a]dverse rulings on procedural matters are not grounds for apprehended or actual bias".
Mr Mohareb further relied on the primary judge's reasons for an earlier ruling on 29 October 2019 that he pay costs on an indemnity basis as: "[o]ver three years have elapsed since the filing, and the hearing of the matter has, although it has been set down several times, constantly [been] delayed by the machination of Mr Mohareb who has, on multiple occasions, sought to delay the matter by applications to the Supreme Court". The primary judge held that he did not believe that this comment gave cause for any apprehension that he had pre-judged the merits of the claim, and declined to recuse himself.

Draft grounds of appeal

The proposed grounds of appeal are as follows: "1. There is no lawful or factual basis for the primary judge's dismissal of the applicant's 7th June 2019 motion, in that the primary judge's reasons for that dismissal are either invalid or are incapable of being supported by the evidence or both. 2. There is no lawful or factual basis for the primary judge's entering judgment for the respondents, in that the primary judge's reasons for entering such judgement are either invalid or are incapable of being supported by the evidence or both. 3. The primary judge's conduct in pre-trial hearings and during the course of the trial hearing is consistent with his Honour having lost impartiality & objectivity and of being deliberately biased & hostile against the applicant 4. The primary judge consistently, repeatedly and deliberately, denied the applicant procedural fairness with the intention of preventing the applicant from being able to adequately present his case. 5. The primary judge erred in failing and/or refusing to self disqualify in circumstances which were such that his Honour knew or ought to have known that he had a duty and obligation to self disqualify. 6. The primary judge erred in twice rejecting and/or dismissing motions by the applicants for his Honour's recusal, with this being in view of the fact that his Honour's stated reasons are lawfully & factually invalid since they are incapable of being supported by the evidence. 7. The primary judge's findings are affected by actual bias in that his Honour was so committed to a conclusion already formed so as to not-be-open to persuasion and so-as-to-be incapable of alteration, whatever evidence or argument may be presented."
A draft notice of appeal is required to state "briefly, but specifically, the grounds relied on in support of the appeal": UCPR r 51.18(1)(e).
The first two draft grounds of appeal are expressed at such a level of generality as to be meaningless. They are bereft of detail and wholly fail to identify the basis for the conclusions they assert. The balance of the grounds appear to be directed to Mr Mohareb's complaints of bias, but are equally bereft of specificity.
I should add that the Proposed Further Amended Summons Seeking Leave to Appeal to which I have referred in [3] above did not cure this difficulty. Lengthening a document does not necessarily render it more specific, nor does it necessarily assist in identifying the error or errors complained of.

Submissions on application for leave to appeal

Turning to the application for leave to appeal, the fact that leave has been sought contains an implicit acceptance that the value of Mr Mohareb's claims is less than $100,000 and thus under the statutory threshold pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). There was no evidence to which the Court's attention was drawn as to the value of those claims: see, generally, Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[30].
Mr Mohareb submitted that leave should be granted for the following reasons: "(i) My appeal has good prospects of success in view of the extensive evidence of bias, hostility & numerous denials of procedural fairness which are outlined through these submissions, all of which had the effect of preventing me from putting my case to Court. (ii) My appeal has good prospects of success in view of the errors enumerated throughout these submissions. (iii) It is clear that an injustice has occurred by reason of the extensive evidence of bias, hostility & denial of procedural fairness outlined throughout these submissions, in addition to the errors in judgment going beyond what is merely arguable. (iv) My appeal raises matters of public interest relating to self represented litigants' right, not only to the same rigorous standard of due process & procedural fairness which is accorded to professionally represented litigants but also to the same courtesy and respect".
At paras 61-62 of his submissions, Mr Mohareb put that: "At the start of the 27th September 2018 directions hearing and in response to me indicating my wish to seek an adjournment and to my opponents indicating their wish that the matter be listed 'at the earliest possible date', Curtis ADCJ's immediate reaction was to enthusiastically assert: 'I can start next week', with the same disposition being expressed, moments later, when his Honour asked me: 'Do you want to start next Monday? Monday Week?'… This was the first sign that, in dealing with me and with my matters, Curtis ADCJ had - unbeknownst to me - made up his mind that he would be guided by only one consideration, to the exclusion of any other, namely the swift disposal of my proceeding by abruptly fixing hearing dates within unrealistically short periods of time and which would prevent me from engaging in what his Honour viewed as 'machinations' and 'deliberate delaying tactics'." (emphasis in original).
The written submissions then continue at length to analyse interlocutory judgments relating to adjournment applications and statements made in the course of procedural directions throughout the course of 2018, well before the proceedings resulting in the judgment the subject of the application for leave to appeal commenced to be heard. The written submissions continued in obsessive detail in relation to the pre-hearing history of the matter.
Amongst other allegations, Mr Mohareb submitted that the primary judge "encouraged [Mr Mohareb's] opponents to seek that any costs ordered in their favour to be made on the indemnity basis", which he submitted was a "denial of procedural fairness" and an "impermissible intervention which amount[ed] to bias", that the primary judge had a "deliberately hostile, biased & punishing modus operandi", that the primary judge had pre-judged the matter, and that the primary judge's attempts to "deliberately ensur[e]" that Mr Mohareb "had unrealistically short periods of time to prepare" his case further supported his assertion of bias.
In relation to the latter allegation, Mr Mohareb contended at paras 168-169 of his submissions: "When I indicated to his Honour that one week would be too short & precipitous, his Honour's response was: 'But you've had since January to prepare submissions in this case. I cannot accept that you will be prejudiced by another week'. … It is unclear why his Honour deemed this particular perspective to be determinative as opposed to the fact that since his Honour had the matter adjourned since January, what was his Honour's justification - other than the desire to be gratuitously punitive, biased & hostile toward me - for the sudden urgency which necessitated that I not be given enough time to prepare and in what way would a further few weeks leeway be inappropriate or prejudicial to anyone?"
Submissions of this kind do not assist in bringing any clarity to an application for leave to appeal.
With respect to the allegation of bias, the Second Respondent, Mr Kelso, outlined that there was an "absence of any evidence which would support a finding of actual bias", making reference to this Court's recent statement in Mohareb v Booth [2020] NSWCA 49 at [37], where it was noted that: "An allegation of actual bias must be clearly proved. Such a finding is not made lightly. Adverse findings, even adverse findings that are contrary to the evidence or unreasonable or hopelessly flawed, will not be sufficient. The circumstances in which actual bias is established will be rare and exceptional." (footnote omitted).
The Fifth Respondent, Mr Smith, submitted that the primary judge did not deny Mr Mohareb procedural fairness by failing to give him sufficient time to prepare his case as, at the commencement of the trial in January 2019, Mr Mohareb had had nearly three years to obtain and collate his evidence.
Mr Smith submitted that leave ought to be refused as, inter alia, Mr Mohareb's right to be heard had been satisfied, and his repeated bringing of complex matters with multiple actions without proper legal advice was an unjustified waste of the respondents' time and money.

Consideration

Mr Mohareb filed 35 pages of single spaced submissions in what appears to be either 9 or 10 point font in support of his application for leave to appeal.
The requirements for the length, content and form of written submissions is clearly set out in the UCPR. With respect to applications for leave to appeal, r 51.12(3) specifies that the summary of argument must not exceed 10 pages. Rule 51.36 outlines that written submissions must be in typeface that is no smaller in appearance than an Arial font in 11 point size or a Times New Roman font in 12 point size, and the lines of typing must be set at least 1.5 lines spacing from each other.
The submissions filed by Mr Mohareb clearly did not comply with these rules. To point this out is not to be pedantic or to invoke a technicality. The imposition of a page limit is consistent with the need for judicial resources to be deployed efficiently, the issues to be identified crisply, and the costs of litigation (including the costs of other parties to litigation who must respond to submissions) to be proportionate: see Civil Procedure Act 2005 (NSW) s 60.
Quite apart from being a flagrant breach of the UCPR, the filing of submissions of the length of those filed by Mr Mohareb is oppressive and illegitimate.
Whilst it may be accepted that some latitude may, in an appropriate case, be afforded to a litigant in person, and that the Court is empowered to waive any requirements of the UCPR in an appropriate case, it is important to keep in mind the remarks of Lord Sumption (with whom Lord Wilson and Lord Carnwath agreed) in Barton v Wright Hassall LLP [2018] 1 WLR 1119; [2018] UKSC 12 at [18]: "In current circumstances, any court will appreciate that litigating in person is not always a matter of choice. … Some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of court. … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which may apply to any step which he is about to take."
The above passage was cited with approval by Garling J in Ryan v The Council of the City of Sydney [2018] NSWSC 265. At [45], his Honour noted that: "…while the Court has a duty to treat litigants in person fairly and to hear their arguments fully, the Court may not indulge the litigant with special treatment in a way that disfavours their opponent."
Similarly, in Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83 at [183], Bryson JA remarked that: "Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers, or to retain none. ... Without procedure, procedural directions and compliance, justice will not be done at all. …The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent's obligation to comply with the court's directions as less than important, or as superfluous."
Nor, as McCallum JA (with whom Basten and Leeming JJA agreed) recently observed, is the Court required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point: see Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21].
I have earlier referred to the length and form of Mr Mohareb's written submissions. Extensive portions of those submissions (the first 54 paragraphs) related to other proceedings, or to the current proceedings before they had even first come before the primary judge. Mr Mohareb does not reach the primary judge's principal decision until para 180 of his written submissions, and even then reverts to evidence and considerations many of which were not before the primary judge.
I do not propose in these reasons to descend to the level of detail contained in Mr Mohareb's written submissions and to wade through it. I have spent several hours endeavouring to do so. Many of the points which he seeks to deploy in support of his allegations of bias are in truth nothing more than the cavilling with procedural rulings made by the primary judge which were adverse to him. As the primary judge was correct to point out, and as was previously outlined in related proceedings in this Court (Mohareb v Kelso (No 2) [2018] NSWCA 246 at [15]): "Disagreement with the reasoning, or the outcome, provides no basis for an assertion of actual bias".
Despite Mr Mohareb's lengthy submissions, they do not focus on what the primary judge found to be the key reasons for his failure, which have been highlighted at [13]-[15] above. Those findings were fundamental. Quite apart from the difficulty posed by the novel duty of care alleged, nothing in the written submissions which I have reviewed suggests a basis for the grant of leave to appeal.
As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires there to be identified an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; and Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
Although he undoubtedly feels strongly about his cause, Mr Mohareb's application for leave to appeal does not meet those criteria.
In relation to the primary judge's refusal to recuse himself, I have reviewed the recusal judgment. Mr Mohareb's written submissions do not focus on any error of principle which is said to infect those reasons; rather they repeat, in vast detail, submissions which it may be inferred were put to the primary judge but rejected by his Honour. It was, in my opinion, more than open to the primary judge to refuse to recuse himself in all of the circumstances of the case.
As no ground for leave to appeal has been established, the application must be dismissed with costs.
EMMETT AJA: These proceedings are concerned with claims by the applicant, Mr Nader Mohareb (Mr Mohareb), that the respondents, who traded under the name "Pink Water Taxis" (the Proprietors), are liable to Mr Mohareb for damage and personal injury occasioned by the conduct of Mr Alexander Kelso (Alexander Kelso) between April 2013 and 2017. In essence, Mr Mohareb's claims against the Proprietors were that they are vicariously liable for the actions of Alexander Kelso.
In proceedings brought against the Proprietors in the District Court of New South Wales, Mr Mohareb claimed damages from the Proprietors, alleging that Alexander Kelso damaged a boat and motor vehicles belonging to him and attacked him physically. He alleged that Alexander Kelso was employed by the Proprietors with full knowledge of his deeply ingrained propensity to violence and that the fact that he would behave wildly and commit criminal acts was attended by such a high degree of foreseeability and predictability that it imposed a duty of care on the Proprietors to take reasonable steps to prevent such criminal acts. On 20 December 2019, a judge of the District Court (the primary judge) entered a verdict for the Proprietors in relation to Mr Mohareb's claims.
The primary judge concluded that there was an "essential problem" with the duty alleged by Mr Mohareb. His Honour held that Mr Mohareb had not proved that the Proprietors knew Alexander Kelso to be a man with a deeply ingrained propensity to violence. Identifying a further "essential problem" with Mr Mohareb's case, his Honour also concluded that the actions of Alexander Kelso complained of were independent of his operation of a water taxi on behalf of the Proprietors and therefore concluded that there was no causal connection between the damage complained of by Mr Mohareb and the employment of Alexander Kelso by the Proprietors.
Mr Mohareb also complained to the primary judge of bias and filed a notice of motion on 7 June 2019 seeking orders that the primary judge recuse himself. His Honour rejected that contention on the basis that, in essence, Mr Mohareb's complaint was simply that earlier interlocutory rulings made by his Honour were adverse to Mr Mohareb's interests and did not constitute grounds for apprehended or actual bias.
By summons filed on 20 March 2020, Mr Mohareb seeks leave to appeal from the orders made by the primary judge. By notice of motion dated 6 July 2020, Mr Mohareb also seeks leave to amend his summons in order to add an additional respondent, to expand the proposed grounds of appeal and to extend the time to appeal from earlier decisions of the primary judge in other proceedings in the District Court. I have had the advantage of reading in draft form the proposed reasons of the President for dismissing Mr Mohareb's application for leave to appeal with costs. I agree with the President's orders and reasons and with the comments made by his Honour in the course of those reasons.

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: 28 September 2020

Uniform Civil Procedure Rules 2005(NSW)rr 51.12(3), 51.18(1)(e), 51.36

Civil Procedure Act 2005(NSW)s 60, s 60.

Supreme Court Act 1970(NSW)s 101(2)(r)

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