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Application by Michael Bar-Mordecai

Application by Michael Bar-Mordecai

Case [2012] NSWSC 501 8 June 2012

Appeal

Vexatious Proceedings

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Application by Michael Bar-Mordecai [2012] NSWSC 501
Hearing dates: 31/05/2012
Decision date: 08 June 2012
Jurisdiction: Civil
Before: Garling J
Decision:
Application dismissed

Catchwords: PRACTICE AND PROCEDURE - Vexatious Proceedings Act 2008 - Application for leave to institute proceedings - Ordinary Procedure - Whether supporting affidavit compliant - Whether proceedings to be instituted vexatious or lack prima facie ground - Whether appeal from decision disposing of the application - Proceedings vexatious
Legislation Cited: Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Vexatious Proceedings Act 2008
Cases Cited: Attorney-General v Bar-Mordecai [2011] NSWSC 100
Attorney-General v Bar-Mordecai [2005] NSWSC 142
Bar-Mordecai v Attorney-General of New South Wales [2012] NSWSC 453
House v The King [1936] HCA 40; (1936) 55 CLR 499
Category: Procedural and other rulings
Parties: Michael Bar-Mordecai
Representation:
M Bar-Mordecai (in person)

File Number(s): 2012/160806

Judgment

Mr Bar-Mordecai, by a summons filed 21 May 2012, applies for an order in the following terms:

"An order that the Plaintiff be granted leave [a 16(3) order pursuant to the VPA] to institute proceedings by way of filing a leave to appeal the Cost Order of Beech-Jones J dated 24.5.2012 in the Court of Appeal." (sic)

In support of that application Mr Bar-Mordecai relied upon an affidavit sworn 21 May 2012.

As contemplated by the Vexatious Proceedings Act 2008, this application was heard ex parte.

Factual background

On 25 February 2005, an order, pursuant to s 84(1) of the Supreme Court Act 1970 was made by Patten AJ, with respect to Mr Bar-Mordecai, in the following terms:

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

2. That any legal proceedings instituted by Michael Jacob Bar-Mordecai, in any court before the date of this order, shall not be continued by him without leave of this Court."

There were other consequential orders: Attorney-General v Bar-Mordecai [2005] NSWSC 142.

On 1 December 2008, the Vexatious Proceedings Act 2008 ("the VP Act") commenced. Orders pursuant to s 84 of the Supreme Court Act which was in existence at that time, were taken to be, and to have effect as if the order was, a vexatious proceedings order made under s 8 of the VP Act.

There is no dispute, by Mr Bar-Mordecai, that by reason of the order of Patten AJ of 25 February 2005, the VP Act applies to him.

On 3 March 2011, Davies J varied Order 5 made by Patten AJ on 25 February 2005, and added a further order, but the principal order which gave rise to the application of the VP Act to Mr Bar-Mordecai was not in any way changed: Attorney-General v Bar-Mordecai [2011] NSWSC 100.

Mr Bar-Mordecai is required, should he wish to institute any proceedings, to do so in accordance with the scheme set out in the VP Act.

The Legislation

Section 14 of the VP Act applies where 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.

Continue reading Application by Michael Bar-Mordecai

Details

AGLC: Application by Michael Bar-Mordecai [2012] NSWSC 501
Case: [2012] NSWSC 501
Decision Date: 08 June 2012

CaseChat Overview and Summary

The matter involved an application by Michael Bar-Mordecai for leave to institute proceedings against the Australian Broadcasting Corporation and others. The application was brought under the Vexatious Proceedings Act 2008 and sought to initiate legal action based on alleged defamation. The case was heard by the Supreme Court of New South Wales.

The central legal issues before the court were whether the supporting affidavit complied with the requirements of the Act and whether the proposed proceedings were vexatious or lacked a prima facie ground. The court had to determine if the application was frivolous or likely to cause unnecessary delay or expense. Additionally, the court examined if there was an appeal from a decision disposing of the application and if the proposed proceedings could be considered vexatious.

The court found that the supporting affidavit did not adequately address the requirements of the Vexatious Proceedings Act, leading to the conclusion that the application was likely to be vexatious. The proposed proceedings were deemed to lack a prima facie ground due to the insufficient evidence presented. The court also dismissed the appeal, finding no grounds for it. As a result, the court refused leave to institute the proceedings.

The court's decision resulted in the application being dismissed, and leave to institute the proposed proceedings was refused. The court ordered that the application be struck out, and costs were awarded against the applicant.

Orders