Mohareb v Kelso [2017] NSWCA 98

Mohareb v Kelso [2017] NSWCA 98

Leave to appeal was refused because, even if some arguable errors or possible alternative formulations existed, the applicant did not show a sufficiently arguable or properly pleaded basis for joining the proposed defendants, particularly given the unpleaded or novel duty of care, the weakness of vicarious liability, and formidable causation problems. The refusal to add further claims was a discretionary case management decision within range, and any possible errors did not meet the tests for leave to appeal from interlocutory procedural orders or show substantial injustice.

Jurisdiction
Australia
Judgment Date
12 May 2017
Procedural Posture
Civil Application for Leave to Appeal From Interlocutory District Court Orders / Application for Leave to Appeal in the Court of Appeal
Outcome
Leave to appeal refused.
Legal Topics
['leave to Appeal' 'interlocutory Orders' 'joinder of Defendants' 'amendment of Statement of Claim' 'trespass to Property' 'assault' 'vicarious Liability' 'duty of Care for Criminal Conduct of Third Party' 'case Management Discretion']
['appeal' 'civil Procedure' 'torts'] ['leave to Appeal' 'interlocutory Orders' 'joinder of Defendants' 'amendment of Statement of Claim' 'trespass to Property' 'assault' 'vicarious Liability' 'duty of Care for Criminal Conduct of Third Party' 'case Management Discretion']

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Procedural Posture

Civil Application for Leave to Appeal From Interlocutory District Court Orders / Application for Leave to Appeal in the Court of Appeal

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the District Court's refusal to add five proposed defendants." "Whether the proposed claims against the additional defendants disclosed an arguable cause of action based on vicarious liability or a direct duty of care for the respondent's alleged criminal or tortious conduct." "Whether leave should be granted to appeal from the District Court's refusal to permit four additional claims of trespass to property to be pleaded." 'Whether any error in the interlocutory procedural rulings warranted appellate intervention or whether refusal of leave would cause substantial injustice.']

Ratio Decidendi

Leave to appeal was refused because, even if some arguable errors or possible alternative formulations existed, the applicant did not show a sufficiently arguable or properly pleaded basis for joining the proposed defendants, particularly given the unpleaded or novel duty of care, the weakness of vicarious liability, and formidable causation problems. The refusal to add further claims was a discretionary case management decision within range, and any possible errors did not meet the tests for leave to appeal from interlocutory procedural orders or show substantial injustice.

Court Disposition

Leave to appeal refused.

Orders

  • ['Refuse leave to appeal from the judgment in the District Court of 12 September 2016.' "Order that the applicant pay the respondent's costs (as a litigant in person), and the costs of the parties sought to be joined, of the application."]