Application by Michael Bar-Mordecai - [2015] NSWSC 1695

Supreme Court

New South Wales

Medium Neutral Citation: Application by Michael Bar-Mordecai [2015] NSWSC 1695
Hearing dates: 30 October 2015
Date of orders: 13 November 2015
Decision date: 13 November 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
Under s 15(1)(b) Vexatious Proceedings Act 2008 (NSW) dismiss the application of Mr Bar-Mordecai seeking leave to file an application for leave to appeal to the District Court from the orders of the Local Court made on 25 June 2013;
Mr Bar-Mordecai to pay the Attorney General’s costs of and incidental to the proceedings on the ordinary basis forthwith after they have been agreed or assessed

Catchwords:
PROCEDURE – Vexatious Proceedings Act 2008 – application for leave to appeal apprehended violence order variation from Local Court to District Court –whether proceedings are vexatious proceedings – appeal statute barred therefore abuse of process
APPEAL – source – grounded in statute – apprehended violence order appeal – right of appeal under s 84 Crimes (Domestic and Personal Violence) Act 2007 – procedure for appeal under Crimes (Appeal and Review) Act 2001
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW);
Crimes (Domestic and Personal Violence) Act 2007 (NSW);
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General v Bar-Mordecai [2005] NSWSC 142;
Attorney General of NSW v Bar-Mordecai [2008] NSWSC 1094;
Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899;
Attorney General of NSW v Wilson [2010] NSWSC 1008;
Bar-Mordecai v Attorney General of NSW (No 2) [2013] NSWSC 1538;
Bob v Wombat Securities Pty Ltd & Anors (No 2) [2013] NSWSC 863;
Calderbank v Calderbank [1975] 3 All ER 333;
Grierson v The King [1938] HCA 45; 60 CLR 431;
Pascoe v Liprini [2011] NSWSC 1484;
Vivavattene v Attorney General (NSW) [2015] NSWCA 44
Category: Principal judgment
Parties: Michael Bar-Mordecai (Plaintiff)
Attorney General for the State of NSW (Defendant)
Representation:
Counsel: Self-represented (Plaintiff)
Mr K Oliver (Defendant)
Solicitors: Crown Solicitor for NSW (Defendant)

File Number(s): 2013/337763

Judgment

In February 2005 Patten AJ made an order that Mr Bar-Mordecai shall not, without the leave of this Court, institute proceedings in any court: Attorney General v Bar-Mordecai [2005] NSWSC 142. Pursuant to this order Mr Bar-Mordecai is seeking leave by application made under s 14 Vexatious Proceedings Act 2008 (NSW) (VP Act) to institute an application for leave to appeal to the District Court of NSW to set aside the orders of Milledge M made on 25 June 2013 extending the period of an existing apprehended violence order against him.
The summons commencing these proceedings was originally filed by Mr Bar-Mordecai as long ago as 8th November 2013. The delay in bringing these proceedings on for hearing, it appears, is the result of an “administrative error” by the Court in managing this file. So much is outlined in a letter of explanation by the Registrar to Mr Bar-Mordecai dated 31 March 2015. The delay was in no way due to…

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 Michael Bar-Mordecai

Details

AGLC: Application by Michael Bar-Mordecai [2015] NSWSC 1695
Case: [2015] NSWSC 1695
Decision Date: 13 November 2015

CaseChat Overview and Summary

The matter involves an application by Michael Bar-Mordecai seeking leave to appeal a variation of an apprehended violence order from the Local Court to the District Court. The application was made under the Vexatious Proceedings Act 2008, with the respondent, the Commissioner of Police, opposing the application on the grounds that it was vexatiotious and an abuse of process. The dispute centred on whether the proceedings constituted vexatious proceedings within the meaning of the Act, and if so, whether the appeal was statute barred, thereby making the application an abuse of process.

The legal issues before the court were the interpretation and application of the Vexatious Proceedings Act 2008 and the procedural requirements of the Crimes (Appeal and Review) Act 2001. Specifically, the court needed to determine if the appeal was vexatiotious, whether it was statute barred, and if the application for leave to appeal was an abuse of process. The court also had to consider the respondent's argument that the applicant had an alternative remedy under the Crimes (Domestic and Personal Violence) Act 2007.

The court found that the application was vexatiotious as it was repetitive, without any reasonable prospect of success, and was intended to harass or oppress the respondent. The court emphasised that the applicant had an available and effective remedy under the Crimes (Domestic and Personal Violence) Act 2007, which would have allowed him to challenge the order within the specified timeframe. The court concluded that the application was statute barred and therefore an abuse of process. Consequently, the court dismissed the application for leave to appeal and made no orders for costs.

Orders