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

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').

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.

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…

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 [2011] NSWSC 236
Case: [2011] NSWSC 236
Decision Date: 05 April 2011

CaseChat Overview and Summary

The applicant, Michael Bar-Mordecai, sought leave to file a notice of appeal against a decision that dismissed his appeal in a prior case. The application was made under the Vexatious Proceedings Act 2008, which requires leave from the court before certain individuals can commence legal proceedings. The primary legal issue before the court was whether the applicant had established a prima facie ground for leave under section 14(3) of the Act. This involved assessing the merits of the applicant's case to determine if it had a reasonable chance of success.

The court considered the requirements of section 14(3) and found that the applicant had indeed established a prima facie ground. This conclusion was reached after examining the merits of the applicant's proposed appeal, which involved a complex matter of statutory interpretation. The court determined that the applicant's proposed appeal raised a valid legal question that warranted further judicial consideration. Consequently, the court exercised its discretion under section 15(1) of the Act to grant the applicant leave to file a notice of appeal.

The court's decision hinged on the applicant's ability to demonstrate a reasonable prospect of success in the appeal, which was satisfied in this instance. The court found that the applicant had shown a prima facie ground for leave, and accordingly, granted the application. This allowed the applicant to proceed with his proposed appeal against the earlier dismissal.

Orders