Application by Bar-Mordecai - [2018] NSWSC 271

Supreme Court

New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2018] NSWSC 271
Hearing dates: On the Papers
Date of orders: 06 March 2018
Decision date: 06 March 2018
Jurisdiction: Common Law
Before: Wilson J
Decision:
Application dismissed.

Catchwords: PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) – vexatious litigant seeks leave to appeal against NCAT orders – application filed almost three years after orders made – application substantially replicates earlier applications made to and adjudicated by the Court – abuse of process
Legislation Cited: Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Application by Bar-Mordecai [2016] NSWSC 1728 Application by Michael Bar-Mordecai [2017] NSWSC 706
Attorney General v Bar-Mordecai [2005] NSWSC 142
Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58
Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
Representation: In Chambers

File Number(s): 2018/31729
Publication restriction: None

Judgment

HER HONOUR: By summons filed in the Registry of this Court on 30 January 2018 Michael Bar-Mordecai seeks “leave to extend time to file the Summons for leave to file a Notice of Appeal to appeal the one page orders of Mullane ADCJ dated 1.4.2015 and the NCAT judgment published by the NCAT 2 July 2015”.
Mr Bar-Mordecai requires the leave of this Court before any process commencing proceedings can be filed because he is a vexatious litigant: Attorney General v Bar-Mordecai [2005] NSWSC 142.
The application relates to orders made on 1 April 2015 by the NSW Civil and Administrative Tribunal (“NCAT”) refusing an application by Mr Bar-Mordecai seeking his re-instatement as a Medical Practitioner: Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58.
Applications in similar terms had been made twice previously by Mr Bar-Mordecai, and twice refused by this Court: Application by Bar-Mordecai [2016] NSWSC 1728; Application by Michael Bar-Mordecai [2017] NSWSC 706.
The present application mirrors that made in 2017, which itself echoed that made in 2016.
In support of it the applicant filed what appears to be the same material in four volumes as was filed in 2017. He relied upon the same submissions filed on 28 April 2017 (in support of the 2017 application) in support of the 2018 application. Some of the documents submitted by the applicant in January 2018 bear the Court’s filing stamp and a 2017 file number and date, albeit heavily scored through in ink. It is apparent that Mr Bar-Mordecai has simply substantially reproduced the earlier applications, and filed the material afresh.
Mr Bar-Mordecai relies upon a fresh affidavit sworn by him on 20 November 2017 but, other than referring to recent correspondence he sent to the Attorney General of New South Wales, the Chief Justice of New South Wales, the Police Minister and the Police Commissioner of New South Wales (none of which contains anything of relevance to the NCAT decision), nothing new has been advanced.
This third application is accompanied by additional submissions dated 8 December 2017, but the submissions, like Mr Bar-Mordecai’s affidavit, advance nothing new.
Applications…

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.

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Details

Case: [2018] NSWSC 271
Decision Date: 06 March 2018

CaseChat Overview and Summary

The parties involved in the application were Bar-Mordecai, seeking leave to appeal against decisions made by the New South Wales Civil and Administrative Tribunal (NCAT), and the respondents, who were parties to the original NCAT proceedings. The dispute centred on Bar-Mordecai's attempts to appeal NCAT's orders, with the court considering whether such an appeal was justified under the Vexatious Proceedings Act 2008 (NSW). The application was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether Bar-Mordecai's application for leave to appeal was an abuse of process, given the significant delay in filing the application and its similarity to previous applications. The court also needed to assess whether the application was made in good faith and whether it was in the interests of justice to allow the appeal. The Vexatious Proceedings Act 2008 (NSW) was central to the court's analysis, as it provides mechanisms to prevent the abuse of legal processes by vexatious litigants.

The Supreme Court found that Bar-Mordecai's application was indeed an abuse of process. The court noted the substantial delay in filing the application, which was almost three years after the NCAT orders were made, and the fact that the application replicated previous applications that had already been adjudicated by the Court. The court held that these factors indicated a lack of good faith and an intent to unnecessarily prolong the proceedings. Consequently, the court refused to grant leave to appeal, emphasising the importance of preventing the abuse of legal processes by vexatious litigants.

The final orders of the court were that Bar-Mordecai's application for leave to appeal against the NCAT orders was dismissed, and the court imposed costs on Bar-Mordecai for the abuse of process. This decision reinforced the court's commitment to protecting the integrity of the legal system and preventing the misuse of legal proceedings by individuals who seek to cause unnecessary delay and expense.

Orders