Application by Michael Bar-Mordecai

[2011] NSWSC 236

Supreme Court

New South Wales

Medium Neutral Citation:	Application by Michael Bar-Mordecai [2011] NSWSC 236
Hearing dates:	In Chambers
Decision date:	05 April 2011
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	For the reasons given, 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:	Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 Vexatious Proceedings Act 2008
Cases Cited:	Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100
Category:	Procedural and other rulings
Parties:	Michael Bar-Mordecai (Plaintiff)
File Number(s):	2011/93579

Judgment

1. By summons filed on 21 March 2011, Mr Bar-Mordecai seeks leave to institute proceedings by filing a notice of appeal in relation to a judgment given by Davies J on 3 March 2011 in Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100. In February 2005, Mr Bar-Mordecai was declared a vexatious litigant by order of Patten AJ. His application for leave must be considered in accordance with the provisions of the Vexatious Proceedings Act 2008 ('the Act').

1. The draft grounds of appeal allege that his Honour erred in his construction of the Act in concluding that Mr Bar-Mordecai 'may not in the absence of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications'. Mr Bar-Mordecai wishes to lead opinion evidence from an expert in support of an application for leave to file a statement of claim in respect of alleged medical negligence. Such an opinion is not, on his approach, a 'fact' material to the application, which ought to have been disclosed in his s 14(3) affidavit. He also wishes to lead further evidence as to other litigation which has arisen since his s 14(3) affidavit was sworn, in order to meet what s 14(3)(a)(i) of the Act envisages.

1. 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 who is subject to an order referred to in paragraph (a).

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.

(3) The applicant must file an affidavit with the application that:

(a) lists all occasions on which the applicant has applied for leave:

(i) under this section, or

(ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on any person unless:

(a) an order is made under section 16 (1) (a), and

(b) the copy is served in accordance with the order.

(5) An appropriate authorised court may dispose of the application by:

(a) dismissing the application under section 15, or

(b) granting the application under section 16.

(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application."

1. The matter is before me to determine whether Mr Bar-Mordecai should be granted leave to serve his application under s 16(1). The section provides:

" 16 Granting application for leave

(1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must:

(a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and

(b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application.

(2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate.

(4) However, the court may grant leave only if it is satisfied that:

(a) the proceedings are not vexatious proceedings, and

(b) there are one or more prima facie grounds for the proceedings.

(5) In this section:

relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons:

(a) the person against or in relation to whom the applicant proposes to institute the proceedings,

(b) the Attorney General,

(c) the Solicitor General,

(d) the appropriate registrar for the authorised court that made the vexatious proceedings order concerned if the registrar applied for the order in relation to the applicant,

(e) any person referred to in section 8 (4) (d) or (e):

(i) who applied for a vexatious proceedings order in relation to the applicant, and

(ii) who the appropriate authorised court dealing with the application considers should be served,

(f) any person:

(i) who made an application in relation to the applicant under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970 before the commencement of this section, and

(ii) who the appropriate authorised court dealing with the application considers should be served."

1. The question of whether or not the application for leave should be granted, must be approached having in mind the provisions of s 15, which provides:

15 Dismissing application for leave

(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:

(a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or

(b) the proceedings are vexatious proceedings, or

(c) there is no prima facie ground for the proceedings.

(2) The application may be dismissed even if the applicant does not appear at the hearing of the application."

1. I turn then to the matters arising for consideration under s 15(1) of the Act.

Section 15(1)(a) - the requirements of s 14(3)

1. I am satisfied that the affidavit on which Mr Bar-Mordecai relies to support his application for leave complies substantially with the requirements of s 14(3).

Section 15(1)(b) - are the proceedings vexatious?

1. 'Vexatious proceedings' are dealt with in s 6, which provides:

"6 Meaning of "vexatious proceedings"

In this Act, vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."

1. In order to come to a conclusion on this question, it is necessary to consider the judgment given by Davies J. His Honour was dealing with a motion brought by the Attorney-General, which raised questions as to the proper construction of the Act. The effect of his Honour's conclusions were that:

1. In the absence of any order of the Court requiring or authorising him to do so, Mr Bar-Mordecai may not lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications

2. The Court may make an order requiring or authorising him to do so.

1. These questions had arisen in a context where Mr Bar-Mordecai had been given leave to serve a number of applications for leave, in accordance with s 16(1) of the Act. He then sought to file further affidavits in support of his application for leave, in addition to the s 14(3) affidavits he had earlier filed. That was opposed by the Attorney-General. Davies J directed that the Attorney-General file a motion, specifying the question of construction of the Act which the Attorney-General wished to argue.

1. Having heard the parties his Honour took the view that if an applicant is given leave to serve an application pursuant to s 16(1) of the Act, thereafter the Court is empowered to permit the applicant to adduce further evidence in support of the application, in relation to matters not already dealt with in the s 14(3) affidavit. Nevertheless, his Honour concluded that an applicant was not free to serve affidavits other than the s 14(3) affidavit, without leave of the Court. He accepted that an applicant in proceedings such as this ought to be closely scrutinised in what they seek to do in relation to any proceedings they seek to bring; that it would be a rare case where such leave would be given; and, that there will be a heavy onus on any applicant who seeks to do so (at [42]).

1. Mr Bar-Mordecai takes issue with his Honour's construction of the Act. That being the case, it does not seem to me that these may be considered to be vexatious proceedings. As Davies J observed at [11], the questions which his Honour has determined raised 'an important point for the construction and operation of the Act'.

Section 15(1)(c) - is there a prima facie ground for the proceedings?

1. While there may be a difficulty with the proposed form of the notice of appeal, given the provisions of s 101 of the Supreme Court Act 1970, that is a technical matter which may be rectified by an appropriate amendment to that document. Otherwise, I am of the view that there is a prima facie ground for the proceedings.

1. His Honour concluded that the Act precludes an applicant from adducing further evidence in support of his application, once leave under s 16(1) has been granted, unless given leave to do so by the Court. That limitation is not one which appears in the Act.

1. His Honour considered a number of circumstances where an applicant may not have included 'all facts material to the application' in the s 14(3) affidavit, as s 14(3)(c) requires. Evidence which replied to evidence adduced by a relevant person, after the applicant had served the application and supporting affidavit pursuant to s 16(1)(a), was one example given (see at [30]). Evidence while known but not appreciated as being relevant to the application when the s 14(3) affidavit was sworn, was another (at [32]). Matters not known to the applicant at the time the affidavit was sworn, but which later come to light, is another potential example; s 14(3)(c) only requiring disclosure of facts known at the time the affidavit is sworn.

1. Mr Bar-Mordecai wishes to lead opinion evidence from an expert, to support his application for leave. He intends to argue that such evidence is not 'a fact' which he was obliged to disclose in his s 14(3) affidavit and that he does not require a court's prior leave to lead such evidence at the hearing of his application, because it is relevant to the determination of his leave application. He also intends to lead evidence of further applications which he has made since he swore his s 14(3) affidavit.

1. Requiring a party to obtain the Court's prior leave to serve evidence on which they wish to rely, involves a departure from the usual right to lead relevant evidence in accordance with s 56 of the Evidence Act 1995. In the ordinary course any objection to the relevance of any evidence sought to be led, is determined at the hearing. That is a different matter to the question of what directions might be given in accordance with the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, prior to the hearing of the application, as to the filing and service of any evidence on which a party wishes to rely to advance their case.

1. Davies J took the view that the Act permitted the Court to design its own procedures for applications for leave brought under the Act (see at [37]). It seems to me that whether any departure from the ordinary course in relation to the leading of evidence to support an application for leave was intended by the Act, is arguable. That being so, I can find no basis for concluding that there is no prima facie ground for the proceedings which Mr Bar-Mordecai seeks to bring, in relation to the proper construction of the Act.

Order

1. For the reasons given, 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.

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Decision last updated: 07 April 2011