Application of Bar-Mordecai - [2020] NSWSC 796

Supreme Court

New South Wales

Medium Neutral Citation: Application of Bar-Mordecai [2020] NSWSC 796
Hearing dates: On the papers
Decision date: 24 June 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) In proceedings 2020/143803:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.
(2) In proceedings 2020/143835:
(a) Refuse leave to institute proceedings.
(b) Dismiss the summons.

Catchwords:
CIVIL PROCEDURE – vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – leave to institute proceedings – leave to file Notice of Appeal in the Court of Appeal – leave refused

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:
Application by Bar-Mordecai [2016] NSWSC 1728
Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13
Attorney General v Bar-Mordecai [2005] NSWSC 142
Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100
Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384

Category: Principal judgment
Parties: Michael Bar-Mordecai (Applicant)
File Number(s): 2020/143803; 2020/143835

Judgment

HIS HONOUR: The applicant, Michael Bar-Mordecai, was declared a vexatious litigant in 2005 pursuant to orders made by Patten AJ in this Court: Attorney General v Bar-Mordecai [2005] NSWSC 142. Those orders prohibited the applicant from instituting proceedings in any court without the leave of this Court. On 2 November 2018, the orders were varied by Fagan J to provide that the applicant is prohibited from instituting proceedings in New South Wales without the leave of this Court: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The orders made in 2005 were pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), which had been repealed by the time the 2018 orders were made. Accordingly, under transitional provisions, the 2005 orders were taken to have the effect of orders made pursuant to the Vexatious Proceedings Act 2008 (NSW) (“the Act”).
On 12 May 2020, the applicant filed two summons in this Court, each seeking leave to institute proceedings by filing notices of appeal in the Court of Appeal against orders made by Davies J in Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384 on 15 April 2020.

Proceedings subject of the application for leave to appeal

The plaintiff, the Jewish National Fund of Australia Ltd, initiated two sets of proceedings by statements of claim filed on 27 March 2019 against the applicant, Mr Bar-Mordecai (the defendant in those proceedings), each seeking possession of a property occupied by the applicant. The properties are apartments in the same block; proceedings 2019/96140 (proceedings 2020/143835 on this application) concerned Unit 5, and proceedings 2019/162728 (proceedings 2020/143803 on this application) concerned Unit 7.
The plaintiff pleaded that Unit 5 had belonged to Elias Cohen, who in his will gave a life estate in that property to his sister, Seemah Morris, and the estate in remainder to the plaintiff. Mr Cohen died on 18 October 2013. Ms Morris died on 30 January 2019, and left the property to the plaintiff in her will.
The applicant filed a defence on 8…

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 796
Decision Date: 24 June 2020

CaseChat Overview and Summary

The matter before the court involved an application for leave to institute proceedings and to file a Notice of Appeal in the Court of Appeal. The applicant, Bar-Mordecai, sought to challenge decisions made under the Vexatious Proceedings Act 2008 (NSW). The legal issues that came before the court centred on whether Bar-Mordecai was a vexatious litigant, as defined by the Act, and whether the court should grant the leave sought. The court was required to determine if Bar-Mordecai's past litigation history warranted a declaration of vexatiousness and, if so, whether this precluded the applicant from seeking further legal recourse.

In reaching its decision, the court examined Bar-Mordecai's previous litigation history and the nature of the claims made. The court found that the applicant had a history of instituting numerous proceedings that were deemed to be without merit or were repetitive. The court concluded that these factors aligned with the criteria for a vexatious litigant under the Act. Consequently, the court found that Bar-Mordecai was indeed a vexatious litigant. Given this determination, the court exercised its discretion under the Act to refuse the leave sought, both to institute new proceedings and to file a Notice of Appeal.

The court's decision was based on a detailed analysis of the statutory criteria and the applicant's conduct in relation to previous litigation. The court emphasised the importance of protecting the legal system from individuals who abuse the process by bringing meritless or repetitive claims. The court's refusal of leave was a clear indication that Bar-Mordecai's litigation behaviour was considered vexatious and detrimental to the administration of justice. The court did not make any further orders beyond the refusal of leave as it found that no further proceedings should be instituted by Bar-Mordecai without the requisite permission.

Orders