Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208

District Court New South Wales

Medium Neutral Citation: Mohareb v Kelso; Mohareb v Booth [2016] NSWDC 208 Hearing dates: 8 September 2016 Date of orders: 12 September 2016 Decision date: 12 September 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Notice of Motion filed by the defendants in proceedings 2015/201139 and 2015/359339 for a stay of proceedings under s 67 Civil Procedure Act 2005 (NSW) dismissed, with no order as to costs. (2) Plaintiff's application in proceedings 2015/201139 to add the named persons as second to sixth defendants dismissed. (3) Plaintiff's application in proceedings 2015/201139 to amend the statement of claim dismissed. (4) Plaintiff's application for proceedings 2015/359339 to be heard before proceedings 2015/201139 dismissed. (5) Plaintiff's application in proceedings 2015/201139 for access to documents from the NSW Police and Mr van Mierlo (the subject of objections recorded by the Registrar) dismissed. (6) The plaintiff to pay the defendants' costs in each of proceedings 2015/359339 and 2015/201139, save for the defendants' application for a stay, with liberty to apply. (7) Proceedings stood over for further directions to the Defamation List on 20 October 2016, on which date the parties should show cause as to why proceedings 2015/359339 and 2015/201139 should not be transferred to the General List. Catchwords: TORT – claim for damages for assault and trespass to goods against two plaintiffs in different proceedings – application by defendants for stay in both proceedings on the basis that the plaintiff is the defendant in proceedings under the Vexatious Proceedings Act 2008 (NSW) which are shortly to be heard – application refused – application by plaintiff to amend statement of claim in proceedings 2015/201139 and to join five new parties on the basis of negligence and/or vicarious liability for the defendant's acts in that they were asserted to be his employers – whether defendant's acts related to his employment – whether claims sufficiently pleaded – application to join additional parties and amend statement of claim refused – application for one of two proceedings travelling together to be heard first – applications dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) ss 61, 67, 73 Crimes Act 1900 (NSW) s 318 Evidence Act 1995 (NSW) s 91 Vexatious Proceedings Act 2008 (NSW) Cases Cited: 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 Mohareb v Palmer (No 2) [2015] NSWDC 141 Mohareb v Palmer (No 3) [2016] NSWDC 38 Mohareb v Palmer [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 Texts Cited: - Category: Procedural and other rulings Parties: Plaintiff: Nader Mohareb Defendant: Alexander Edward Kelso (2015/201139) Defendant: Taylor Booth (2015/359339) Representation: Counsel: Plaintiff: In person Defendants in both proceedings: Ms K Vanderfield (solicitor)