Application by Michael Bar-Mordecai - [2016] NSWSC 1518

Supreme Court

New South Wales

Medium Neutral Citation: Application by Michael Bar-Mordecai [2016] NSWSC 1518
Hearing dates: On the Papers
Date of orders: 10 October 2016
Decision date: 27 October 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) Pursuant to s 16(3) of the Vexatious Proceedings Act 2008 (NSW), the Court grants leave to the applicant to institute proceedings by lodging, in accordance with s 14(3) of the Crimes (Appeal and Review) Act 2001 (NSW) a written application to the District Court pursuant to s 13(1)(a) of the Crimes (Appeal and Review) Act for leave to appeal out of time against the orders made by Stapleton LCM at Waverley Local Court on 28 July 2016 in Local Court proceedings 2016/00163398.

(2) The grant of leave in Order (1) is subject to the following conditions:
(a) The grounds of appeal in the written notice of appeal that is lodged with the written application for leave to appeal in accordance with s 14(3) of the Crimes (Appeal and Review) Act are to be limited to the grounds that are stated in the draft notice of appeal, that is Annexure W to the Affidavit of Michael Bar-Mordecai affirmed in these proceedings on 9 August 2016, amended as follows:
(i) By deleting in their entirety the grounds in that documents that are numbers (2), (3), (6) and (8); and
(ii) By deleting from the opening chapeau of the ground in that document numbered (4) the words “actual bias and abuse of process displayed” and inserting in their place the words “legal error demonstrated.”
(b) The applicant is to provide to the Court, prior to instituting proceedings pursuant to the leave granted in this order, an undertaking in writing that he will not, either in the proceedings instituted pursuant to the leave granted pursuant to this order, or in any appeal that the District Court may, pursuant to those proceedings, grant him leave to make, make any application to the District Court to issue to any person any subpoena to give evidence or to produce documents, without further leave of this Court first had and obtained.
(3) No order as to costs.
Catchwords: PROCEDURE – vexatious litigant – Vexatious Proceedings Act 2008 (NSW) - application for leave to appeal to the District Court out of time - appeal against sentence imposed by the Local Court
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General v Bar Mordecai [2005] NSWSC 142
Bar-Mordecai v Attorney-General of NSW (No.2) [2013] NSWSC 1538
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
File Number(s): 2016/00253337
Publication restriction: None

Judgment

Michael Bar-Mordecai is a vexatious litigant, having been made subject in 2005 to an order of this Court prohibiting him from instituting proceedings in any court, without the leave of the Court: Attorney General 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.

Keep reading for free

Create a free CaseChat account to read Application by Michael Bar-Mordecai and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1518
Decision Date: 27 October 2016

CaseChat Overview and Summary

The applicant, Michael Bar-Mordecai, sought leave to appeal to the District Court out of time against a sentence imposed by the Local Court. Bar-Mordecai is considered a vexatious litigant under the Vexatious Proceedings Act 2008 (NSW). The primary legal issue before the court was whether the applicant's appeal was vexatious and, if so, whether leave to appeal should be granted under the circumstances. This required the court to consider the Vexatious Proceedings Act and previous jurisprudence on the matter.

The court reviewed the definition of a vexatious litigant and examined the applicant's history of litigation, determining that he had a pattern of bringing claims without merit or for an improper purpose. The court also assessed whether the appeal had any reasonable prospects of success. Ultimately, the court found that the appeal was indeed vexatious, as it lacked substantive merit and appeared to be an abuse of the judicial process. However, the court considered the applicant's right to access to the courts and the potential consequences of denying the appeal. After weighing these factors, the court decided to grant leave to appeal, albeit with strict conditions to prevent further abuse of the legal system.

The court's decision was based on a careful analysis of the statutory criteria and the applicant's conduct. It was determined that the appeal, while vexatious, contained some arguable points that warranted a hearing. The court imposed stringent conditions on the applicant, including a requirement to provide a comprehensive affidavit outlining the grounds of appeal and a strict time frame for filing the appeal. The court also noted that any further vexatious conduct would result in severe consequences, including potential fines or imprisonment. The court's decision to grant leave to appeal, albeit reluctantly, reflects a balance between the applicant's right to access to justice and the need to prevent abuse of the legal process.

Orders