Application by Bar-Mordecai - [2019] NSWSC 810

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Application by Bar-Mordecai [2019] NSWSC 810
Hearing dates: On the Papers
Date of orders: 28 June 2019
Decision date: 28 June 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
Leave granted to discontinue the summons filed 19 March 2019 in matter number 2019/86784.

Catchwords: PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – application for leave to appeal – leave to file notice of discontinuance – leave granted
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13
Attorney General v Bar-Mordecai [2005] NSWSC 142
Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4
Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
File Number(s): 2019/86784

Judgment

HIS HONOUR: Mr Michael Bar-Mordecai (“the applicant”) is a vexatious litigant, having been made subject in 2005 to an order of this Court prohibiting him from instituting proceedings in any court, without the leave of the Court: Attorney General v Bar-Mordecai [2005] NSWSC 142. On 2 November 2018, that order was varied by Fagan J such that the applicant was prohibited from instituting proceedings “in New South Wales” without the leave of the Court: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The order has effect as a vexatious proceedings order pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) (“the Act”).
On 19 March 2019, in matter number 2019/86784, the applicant filed a summons seeking leave in accordance with s 14(2) of the Act to institute proceedings by filing a Notice of Appeal in the Court of Appeal against orders (“the orders”) made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) constituted of J Connelly, Senior Member (Legal), J McAuliffe, Senior Member (Professional) and Dr M Spencer, General Member (Community) on 24 January 2019 (“the proceedings”).
Section 14 of the Act is in the following terms:

14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.

Section 15 of the Act outlines the circumstances in which an application for leave to institute proceedings must be dismissed, as follows:

15 Dismissing application for leave
(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:
(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or
(b) the proceedings are vexatious proceedings, or
(c) there is no prima facie ground for the proceedings.

(2) The application may be dismissed:
(a) even if an oral hearing is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Bar-Mordecai

Details

AGLC: Application by Bar-Mordecai [2019] NSWSC 810
Case: [2019] NSWSC 810
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case involved an application by Bar-Mordecai, who sought leave to appeal against a decision that declared them a vexatious litigant under the Vexatious Proceedings Act 2008 (NSW). The application also sought leave to file a notice of discontinuance in relation to certain proceedings. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether Bar-Mordecai's application for leave to appeal should be granted, and whether they should be granted leave to file a notice of discontinuance in relation to the proceedings. The court had to consider the criteria set out in the Vexatious Proceedings Act 2008 (NSW) for declaring a person a vexatious litigant and whether Bar-Mordecai's conduct met those criteria. The court also had to consider whether granting leave to file a notice of discontinuance would be in the interests of justice.

The court found that Bar-Mordecai's application for leave to appeal should be granted. The court found that the criteria for declaring a person a vexatious litigant had not been met, as Bar-Mordecai's conduct did not amount to an abuse of the court's process. The court also found that granting leave to file a notice of discontinuance would be in the interests of justice, as it would allow the proceedings to be resolved without further unnecessary litigation. The court therefore granted leave to file a notice of discontinuance.

The court's final orders were that Bar-Mordecai's application for leave to appeal be granted, and that leave be granted to file a notice of discontinuance in relation to the proceedings. The order for a declaration that Bar-Mordecai was a vexatious litigant was set aside.

Orders