Application by Michael Bar-Mordecai - [2011] NSWSC 418

Supreme Court

New South Wales

Medium Neutral Citation: Application by Michael Bar-Mordecai [2011] NSWSC 418
Hearing dates: In Chambers
Decision date: 16 May 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
It follows that the order sought under s 16(1)(a) of the Act must be made. Accordingly, I order that Mr Bar-Mordecai serve each relevant person with a copy of his application and supporting affidavit and a notice that the person is entitled to appear and be heard on the application, together with a copy of this decision.

Catchwords: PROCEDURE - application for leave to commence proceedings under Vexatious Proceedings Act 2008 - applicant prohibited from commencing legal proceedings without leave of the court - leave sought to file a notice of appeal - requirements of s 14(3) of the Vexatious Proceedings Act 2008 - consideration under s 15(1) of the Vexatious Proceedings Act 2008 - prima facie ground found - leave sought granted
Legislation Cited: Supreme Court Act 1970
Vexatious Proceedings Act 2008
Cases Cited: Attorney-General (NSW) v Bar-Mordecai [2010] NSWSC 1410
Attorney-General (NSW) v Bar-Mordecai (Supreme Court of New South Wales, Harrison J, 21 October 2010, unreported)
Category: Procedural and other rulings
Parties: Michael Bar-Mordecai (Plaintiff)
File Number(s): 2011/93570

Judgment

On 25 February 2005, this Court declared Mr Bar-Mordecai a vexatious litigant within the meaning of s 84 of the Supreme Court Act 1970. On 19 November 2009, Smart AJ granted Mr Bar-Mordecai leave to file a statement of claim in the District Court alleging against the State of New South Wales wrongful arrest, false imprisonment and assault.

By summons filed on 25 March 2011, Mr Bar-Mordecai seeks leave under the Vexatious Proceedings Act 2008 ('the Act') to institute proceedings by filing a notice of appeal in the Court of Appeal in relation to orders made by Truss DCJ on 4 March 2011 in the District Court proceedings. Truss DCJ came to the view that Mr Bar-Mordecai required this Court's leave to bring a motion for discovery in the District Court proceedings. Mr Bar-Mordecai had not been granted such leave and accordingly, Truss DCJ dismissed his motion. Her Honour ordered:

"1. Note: the plaintiff made an oral application to vacate the hearing date (is seeking leave to appeal from Judge Rolfe's decision of 18 February 2011).

2. Vacate hearing date of 14 March 2011.

3. Note: the plaintiff is now not pressing for a hearing with jury.

4. The Court dismisses the plaintiff's amended notice of motion (filed 25 February 2011) for discovery.

5. Stand over for directions on Wednesday, 8 June 2011 at 9:30am before the list judge.

6. Reserve costs of today."

Mr Bar-Mordecai has filed an affidavit in support of his application which addresses matters dealt with in s 14 of the Act, which provides:

" 14 Application for leave to institute proceedings

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

(b) acting in concert with another person…

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: [2011] NSWSC 418
Decision Date: 16 May 2011

CaseChat Overview and Summary

Michael Bar-Mordecai sought leave to commence proceedings under the Vexatious Proceedings Act 2008 (Vic). The application was made to the Supreme Court of Victoria. The applicant was prohibited from instituting legal proceedings without the leave of the court. He sought leave to file a notice of appeal in relation to a previous decision.

The court needed to determine whether there was a prima facie ground for granting leave under section 14(3) of the Act and whether leave should be granted under section 15(1) of the Act. The applicant contended that there was a prima facie ground as the appeal had reasonable prospects of success and the application was not an abuse of process. The court had to weigh the merits of the application against the potential for vexatious litigation.

The court found that there was a prima facie ground for granting leave. The appeal had a reasonable prospect of success on the merits and the application was not an abuse of process. The applicant had demonstrated that the appeal raised a substantial question of law or fact which ought to be determined by the Court of Appeal. The court was satisfied that the applicant had acted bona fide in bringing the application and that the application was not frivolous or vexatious. The court granted leave to the applicant to file a notice of appeal.

Orders