Application of Bar-Mordecai - [2020] NSWSC 1334

Supreme Court

New South Wales

Medium Neutral Citation: Application of Bar-Mordecai [2020] NSWSC 1334
Hearing dates: On the papers
Decision date: 01 October 2020
Jurisdiction: Common Law
Before: Button J
Decision:
Leave to institute proceedings refused.

Catchwords:
Application for leave to institute proceedings – recent, relevant judgment not included in affidavit evidence – legal and factual consequences of judgment not the subject of submissions in support of application – essential statutory precondition for grant of leave not fulfilled

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Application of Bar-Mordecai [2020] NSWSC 796
Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384

Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
File Number(s): 2020/189704
Publication restriction: Nil

Judgment

Introduction

Mr Michael Bar-Mordecai (the applicant) is currently subject to an order made by Fagan J on 2 November 2018, pursuant to the Vexatious Proceedings Act 2008 (NSW) (“the VPA”).
That order is as follows:
Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW) I vary order 1 made by Patten AJ on 25 February 2005 by removing the words “in any court” and adding the words “in New South Wales” so that the order as amended reads “That Michael Jacob Bar-Mordecai shall not, without leave of this Court, institute proceedings in New South Wales”.
As can be seen, the order continued, and expanded upon, an order restricting the rights of the applicant as a litigant that had been made by an Acting Judge of this Court as long ago as in 2005.
Pursuant to Part 3 of the VPA, the applicant has made an application for leave to institute proceedings against a solicitor whose office is located in the eastern suburbs of Sydney (“the proposed defendant”).
The relevant portions of the VPA are as follows:

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…

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.

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Details

Case: [2020] NSWSC 1334
Decision Date: 01 October 2020

CaseChat Overview and Summary

In the matter of the application of Bar-Mordecai, the applicant sought leave to institute proceedings against a respondent under specific statutory provisions. The nature of the dispute centred on whether the applicant had fulfilled the essential statutory preconditions required to obtain leave to proceed with the litigation. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the applicant had demonstrated compliance with the statutory requirements for leave to institute proceedings, particularly in light of a recent and relevant judgment that had not been included in the affidavit evidence provided in support of the application.

The court was required to determine whether the omission of the recent judgment in the affidavit evidence, and the failure to address its legal and factual consequences, constituted a breach of the essential statutory preconditions for granting leave. Additionally, the court needed to assess whether the applicant's submissions sufficiently addressed the statutory requirements, given the absence of reference to the omitted judgment. The court acknowledged the importance of strict adherence to statutory preconditions and the need for applicants to provide comprehensive and accurate evidence to support their applications.

The court found that the applicant had not fulfilled the essential statutory precondition for grant of leave by omitting the recent judgment from the affidavit evidence and failing to address its legal and factual consequences in the submissions. The court held that the statutory requirements for leave to institute proceedings must be strictly observed, and any omission or insufficiency in the evidence or submissions provided could result in the application being dismissed. Consequently, the court refused the application for leave to institute proceedings, emphasising the importance of compliance with statutory requirements and the need for applicants to provide complete and accurate evidence.

The court's decision was clear and definitive, with no indication of any additional orders beyond the refusal of leave to institute proceedings. The court's reasoning highlighted the critical importance of strict adherence to statutory preconditions and the necessity for applicants to provide comprehensive and accurate evidence to support their applications. The refusal of leave to institute proceedings was a direct consequence of the applicant's failure to comply with the essential statutory requirements.

Orders