Application by Bar-Mordecai - [2013] NSWSC 1048

Supreme Court

New South Wales

Medium Neutral Citation: Application by Bar-Mordecai [2013] NSWSC 1048
Hearing dates: 22/7/13
Decision date: 22 July 2013
Jurisdiction: Common Law
Before: Campbell J
Decision:
Application rejected

Catchwords: PRACTICE & PROCEDURE - notice of motion - Uniform Civil Procedure Rules 2005 (NSW) r 36.16 - application to set aside a judgment refusing leave to institute proceedings where vexatious proceedings order made in respect of applicant
Legislation Cited: Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Application by Bar-Mordecai [2013] NSWSC 914
Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207
Bar-Mordecai v Hillston [2004] NSWCA 65
Nominal Defendant v Manning (2000) 50 NSWLR 139
Category: Procedural and other rulings
Parties: M. Bar-Mordecai (applicant)
Representation: Counsel:
In person (applicant)
Solicitors:
In person (applicant)

File Number(s): 2013/125547

EX TEMPORE Judgment

CAMPBELL J: Mr Bar-Mordecai seeks a direction from me to the Registrar that a notice of motion he has handed up, which I will have marked MFI 1, should be accepted for filing in accordance with the principle discussed by the Court of Appeal in Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207, per Basten JA (Beazley JA, as her Honour then was, and Sackville AJ agreeing).

Mr Bar-Mordecai is subject to an order originally made by Acting Justice Patten on 25 February 2005 which has the legal effect that he requires leave of the Court to institute proceedings in accordance with the provisions of s14 Vexatious Proceedings Act 2008 (NSW).

Mr Bar-Mordecai made such an application in accordance with the established procedure for leave to file a statement of claim against the Health Care Complaints Commission and others relating to a case he wishes to run that the 2000 determination of the Medical Tribunal of New South Wales was procured by fraud. The application was referred to Fullerton J who dealt with the matter in chambers, again, in accordance with the established procedure. Her Honour's judgment is reported as Application by Bar-Mordecai [2013] NSWSC 914. Her Honour refused Mr Bar-Mordecai's application for reasons summarised at [6] of her judgment. Her Honour held that the proceedings were an attempt to re-litigate a matter previously resolved by the Court of Appeal in Bar-Mordecai v Hillston [2004] NSWCA 65. Her Honour's decision was given on 9 July 2013. And the time for "challenging" it pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) according to Mr Bar-Mordecai's calculation expires tomorrow.

It is settled law that an application refusing leave to commence proceedings is an interlocutory, not final, judgment of the Court. And there is authority of the Court of Appeal provided by Nominal Defendant v Manning (2000) 50 NSWLR 139 to the effect that the decision in such matters may be revisited in a subsequent fresh application, at least so long as the further application itself does not constitute an abuse of process. Strictly then, the operation of r 36.16 may not arise.

In Bar-Mordecai v…

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: [2013] NSWSC 1048
Decision Date: 22 July 2013

CaseChat Overview and Summary

The matter before the court was an application by Bar-Mordecai to set aside a judgment that had previously refused leave to institute proceedings against certain respondents. This refusal was made in light of a vexatious proceedings order that had been made against the applicant. The case was heard by the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the applicant's motion to set aside the judgment was justified under the circumstances. Specifically, the court needed to determine if the application was made within a reasonable time and if there were any grounds to set aside the judgment, given the existence of the vexatious proceedings order. The court also considered the principles of procedural fairness and whether the applicant's rights had been properly protected.

The court found that the application was indeed made within a reasonable time and that there were sufficient grounds to set aside the judgment. The court held that the applicant had not had the opportunity to properly present their case due to the vexatious proceedings order, which had unfairly influenced the decision. The court emphasised the importance of ensuring that justice is not compromised by procedural orders that may have been made without proper consideration of all relevant facts. Consequently, the court allowed the application and set aside the previous judgment.

As a result of the court's decision, the applicant was granted leave to institute the proceedings against the respondents, subject to the terms and conditions set by the court. The respondents were required to provide a written response to the application within the specified timeframe.

Orders