Application by Bar-Mordecai - [2013] NSWSC 1908

Supreme Court

New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2013] NSWSC 1908
Hearing dates: On the papers
Decision date: 17 December 2013
Jurisdiction: Common Law
Before: Leeming JA (in chambers)
Decision:
Application dismissed

Catchwords: PRACTICE AND PROCEDURE - vexatious litigant - application for judicial review of decision of Medical Tribunal in 2009 - nature of jurisdiction - no need for oral hearing - no prima facie ground - unexplained delay - leave refused
Legislation Cited: Health Practitioner Regulation (Adoption of National Law) Act 2009
Health Practitioner Regulation National Law
Medical Practice Act 1992
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Bar-Mordecai v The Attorney-General (NSW) [2012] NSWCA 207
Landsman v Director of Public Prosecutions [2013] NSWCA 369
R (Ewing) v Department of Constitutional Affairs [2006] EWHC 504 (Admin); [2006] 2 All ER 993
Smith v Yusen Daly Smith International Pty Ltd (in liq) [2001] NSWCA 458; 53 NSWLR 385
Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
File Number(s): 2013/321349

Judgment

LEEMING JA: Mr Michael Bar-Mordecai's summons dated 24 October 2013 seeks leave to file a "Notice of Appeal" challenging what is described as "the judgment of Murrell DCJ dated 18.3.2009 in Bar-Mordecai v NSW Medical Board" (it will be necessary to return to the form of the document sought to be relied upon, and to the description of the decision Mr Bar-Mordecai wishes to challenge). Mr Bar-Mordecai's affidavit was filed without its exhibits. These were requested by the Registrar on 4 December 2013 and supplied shortly thereafter; they comprise two lever arch folders of documents.

Mr Bar-Mordecai requires leave because on 25 February 2005 an order was made pursuant to s 84(1) of the Supreme Court Act 1970 relevantly in the following terms:

"1. That Michael Jacob Bar-Mordecai shall not, without leave of this court, institute proceedings in any court."

Section 84 was repealed by the Vexatious Proceedings Act 2008 (VP Act), but clause 4 of Schedule 1, which takes effect pursuant to s 20 of the VP Act, has the effect that the order continues to operate to prevent Mr Bar-Mordecai from instituting proceedings without leave (cl 4(1)(c)) and is taken to be, and to have effect as if it were, a vexatious proceedings order made under the VP Act (cl 4(2)).

Jurisdiction

The proceeding which Mr Bar-Mordecai wishes to commence would invoke this Court's supervisory jurisdiction under s 69 of the Supreme Court Act. Section 48 of the Supreme Court Act assigns to the Court of Appeal both appeals and proceedings in the nature of judicial review from decisions of "specified tribunals", which term includes a Judge of the District Court and a body of persons having amongst its number a judge: s 48(1)(a)(iv) and (vii). If leave under the VP Act be granted, Mr Bar-Mordecai's proceeding accordingly will be assigned to the Court of Appeal. For that reason, his application was allocated to me.

However, the functions conferred by ss 14, 15…

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 [2013] NSWSC 1908
Case: [2013] NSWSC 1908
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case involves an application for judicial review brought by Bar-Mordecai, seeking to challenge a decision made by a Medical Tribunal in 2009. The application was dismissed by the court on the grounds that it was vexatious, and leave to appeal was refused. The dispute centred on whether the court had the jurisdiction to hear the application and whether there were any grounds for granting leave to appeal. The application was made more than four years after the Tribunal's decision, with no explanation for the delay, and there was no evidence to suggest that the decision was incorrect or that the application was otherwise meritorious.

The court had to determine several key issues. First, whether the court had the jurisdiction to hear the application for judicial review, given the delay in making the application and the absence of any explanation for the delay. Second, whether there were any prima facie grounds for granting leave to appeal, and whether the application was vexatious. The court also had to consider whether an oral hearing was necessary or whether the matter could be decided on the written submissions alone.

The court found that it did have jurisdiction to hear the application, but that there were no prima facie grounds for granting leave to appeal. The court noted that there had been an unexplained delay in making the application, and that the applicant had not provided any evidence to suggest that the Tribunal's decision was incorrect or that there were any other grounds for review. The court also found that an oral hearing was not necessary, as the matter could be decided on the written submissions alone. The court further found that the application was vexatious, given the lack of any merit and the delay in making the application. As a result, leave to appeal was refused.

The court dismissed the application for judicial review and refused leave to appeal. The court found that it had jurisdiction to hear the application, but that there were no prima facie grounds for granting leave to appeal. The court also found that the application was vexatious, given the lack of any merit and the delay in making the application. The court's decision was final and binding, and the applicant was not permitted to appeal further.

Orders