Application by Bar-Mordecai - [2016] NSWSC 1728

Supreme Court

New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2016] NSWSC 1728
Hearing dates: On the Papers
Date of orders: 06 December 2016
Decision date: 06 December 2016
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 – failure to disclose viable grounds of appeal – matters of personal abuse advanced – proceedings vexatious – no prima facie case disclosed
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil and Procedural Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: 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)
File Number(s): 2016/309518
Publication restriction: None.

Judgment

On 1 April 2015 the NSW Civil and Administrative Tribunal (“NCAT”) ruled upon an application by Michael Bar-Mordecai seeking his re-instatement as a Medical Practitioner: Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58. NCAT made a number of orders, the first four of which are the subject of the present claim. Those orders are as follows:

“1.   The application of the Applicant for a reinstatement order is refused and dismissed.
2.   Order 1 must not be reviewed until after the expiration of 3 years from this date.
3.   The Applicant must pay the costs of the Respondent of and incidental to these proceedings since the application was filed, such costs to be as agreed or as assessed.
4.   As the Applicant informed the Tribunal at the hearing that if his application was refused he would consider committing suicide, the Registrar is requested to notify the Applicant’s General Practitioner and the Acute Care Team for the Eastern Suburbs Mental Health Services and inform them of these orders and this request.”

Mr Bar-Mordecai wishes to appeal against the NCAT orders pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “CAT Act”), but cannot do so without the leave of this Court. That is so because he is a vexatious litigant, having been made subject to relevant orders by Patten AJ on 25 February 2005: Attorney General v Bar-Mordecai [2005] NSWSC 142. Patten AJ's orders prohibit the applicant from instituting proceedings in any court without the leave of the Supreme Court.
Applications for leave by vexatious litigants are governed by the Vexatious Proceedings Act 2008 (NSW) ("the VP Act").
Section 14 of the VP Act relevantly provides:

"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)…

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: [2016] NSWSC 1728
Decision Date: 06 December 2016

CaseChat Overview and Summary

The applicant, Bar-Mordecai, sought leave to appeal against decisions made by the New South Wales Civil and Administrative Tribunal (NCAT). The case involved an application to have the applicant declared a vexatious litigant under the Vexatious Proceedings Act 2008 (NSW). The legal issues before the court were whether Bar-Mordecai's appeal had any viable grounds and whether the matters advanced in the appeal amounted to personal abuse, thereby making the proceedings vexatious.

The court found that Bar-Mordecai had failed to disclose any viable grounds for appeal. Instead, the applicant's submissions were primarily focused on matters of personal abuse, which the court considered irrelevant to the merits of the appeal. The court determined that the proceedings were vexatious as they did not disclose a prima facie case. Bar-Mordecai's approach was deemed to be an abuse of the legal process, and the court dismissed the application for leave to appeal.

In dismissing the application, the court emphasised the importance of focusing on legal arguments rather than personal grievances. The court concluded that Bar-Mordecai's conduct demonstrated a disregard for the judicial process, and therefore, the application was dismissed without costs.

Orders