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

1. 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”.

2. 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.

3. 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.

4. 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.

5. The present application mirrors that made in 2017, which itself echoed that made in 2016.

6. 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.

7. 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.

8. This third application is accompanied by additional submissions dated 8 December 2017, but the submissions, like Mr Bar-Mordecai’s affidavit, advance nothing new.

9. Applications for leave by vexatious litigants are governed by the Vexatious Proceedings Act 2008 (NSW) ("the VP Act"). Section 14 is in these 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

[...]

(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.

(3)   The applicant must file an affidavit with the application that:

(a)   lists all occasions on which the applicant has applied for leave:

(i)   under this section, or

(ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(b)   lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

(c)   discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(4)   The applicant must not serve a copy of the application or affidavit on any person unless:

(a)   an order is made under section 16 (1) (a), and

(b)   the copy is served in accordance with the order.

(5)   An appropriate authorised court may dispose of the application by:

(a)   dismissing the application under section 15, or

(b)   granting the application under section 16.

(6)   Despite any other Act or law, the applicant may not appeal from a decision disposing of the application."

10. Section 14(5)(b) refers to the dismissal of an application. The power to make such an order is governed by s 15, which provides:

“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.”

11. Proceedings will be vexatious for the purposes of s 15(1)(b) if the definition at s 6 of the VP Act is met. The section provides,

“6   Meaning of “vexatious proceedings

In this Act, vexatious proceedings includes:

(a)   proceedings that are an abuse of the process of a court or tribunal, and

(b)   proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)   proceedings instituted or pursued without reasonable ground, and

(d)   proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

Determination

12. Given that this Court has already considered and determined two earlier applications brought by Mr Bar-Mordecai, and refused them, I cannot but conclude that this third application represents an abuse of the Court’s process. The applications filed by him, on 17 October 2016 and on 28 April 2017, are materially identical to the present application, and seek the same orders. The documentary material relied upon, other than the affidavit and submissions earlier referred to, is the same. The summons seeks to re-agitate the subject matter of the earlier applications for review of the NCAT decisions.

13. The application is an abuse of process, and vexatious. It should be dismissed.

orders

14. Pursuant to s 15(1)(b) of the Vexatious Proceedings Act 2008 (NSW) the summons filed on 30 January 2018 by Michael Bar-Mordecai is dismissed.

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Decision last updated: 12 March 2018